[This is a guest post by Kenson Mutethia.]
The Kenyan Supreme Court has effectively defeated the essence of structural interdicts in the legislative process in the Tribunals transition case. By the same decision, whether wittingly or unwittingly, it has also undermined the essence of suspended declarations in the Finance Act 2023 Judgment. All this happened because of the Supreme Court’s holding in the Tribunals Transition case that it was sufficient to declare that Parliament was obligated to enact the Tribunals Act, and that going further to issue a structural interdict requiring Parliament to report to the Court on measures taken would be intrusive and violate the separation of powers. So how did we get here, and why is this hollow?
The background to the dispute was that, in 2018, Okiya Omtatah filed a Petition at the High Court, arguing (among other things) that Parliament’s failure to enact a Tribunals Act under Article 169(2) was unconstitutional. The High Court agreed and directed Parliament and the Attorney General to report to the court within 6 months on the progress made in enacting the law. In 2025, the Court of Appeal primarily agreed that the delay in the enactment was unreasonable and found no need to interfere with the structural interdict issued by the High Court, viewing it as necessary to secure implementation in light of prolonged delay.
The Supreme Court agreed that, first, there is an obligation to enact the Tribunals Act, and secondly, Parliament’s delay in enacting it was unreasonable and amounted to a breach of Articles 48 and 169 (2). The turning point of the case at the Supreme Court, however, was the question of an effective remedy for the unreasonable delay. Whether a declaratory relief was sufficient or there was a need for a structural interdict. Specifically, the Supreme Court had to determine whether, having agreed with the two findings above, it was appropriate for the Court of Appeal to grant a structural interdict requiring Parliament and the Attorney General to report to the court on the progress made in enacting the Tribunals Act.
One may reasonably wonder why we are talking about delay here and why Parliament has delayed in enacting the said Tribunals Act. Well, there is a delay because the Tribunals Act is not one of those consequential pieces of legislation for which there is a prescribed timeline for enactment under Article 261 and the Fifth Schedule of the Constitution. It is therefore governed by the standard of “without unreasonable delay” under Article 259 (8) of the Constitution.
The standard of “unreasonable delay”, as the Supreme Court affirms, is inherently contextual and must be assessed with reference to the importance of the constitutional obligation, its impact on the enjoyment of rights and the constitutional expectation of timely implementation of the Constitution. In this case, all three courts unanimously agree that Parliament’s delay in enacting the “Tribunals Act” since 2010 is unreasonable and amounts to a breach of Articles 48 and 169 (2). So, there is no dispute that Parliament has an obligation and is guilty of an unreasonable delay in fulfilling it. What to do?
Three Tribunal Bills have been introduced in 2017, 2023, and 2025, but the Act has not yet been enacted. This uncontested fact matters because it goes to what the Supreme Court began by noting in this case: that the pendency of a legislative process does not suspend constitutional obligations or cure the violations in contest, and neither does it render a controversy non-justiciable. Basically, Parliament cannot say “something is cooking” to evade judicial scrutiny. But the real question really is not about justiciability; it is about an effective remedy. To this end, the Supreme Court recognises that the pendency of a Bill will only be relevant to the fashioning of an appropriate remedy or compliance timeline. Up to this point, the Court’s reasoning is sound. Until we get to the “appropriate remedy” fashioned in the Tribunals Transition Case.
The Supreme Court’s analysis turned on whether a structural interdict would be an appropriate exercise of judicial power under Article 23(3) or a transgression of the separation of powers, intruding into legislative functions. To answer the framing, the Supreme Court began by determining the limits of structural interdicts, holding that they must be specific, realistic, proportionate, and restrained, and that they avoid judicial overreach, particularly in matters implicating policy choices or the institutional competence of other arms of government. Second, they are justified where duty bearers have demonstrated incompetence, intransigence, or sustained inattentiveness in the discharge of constitutional obligations. Thirdly, in the legislative context, judicial intervention is justified only in the clearest of cases as unwarranted intrusion risks undermining democratic governance and institutional autonomy. Courts exercising review jurisdiction must consequently observe restraint and avoid encroaching upon functions constitutionally reserved to the legislative arm of government.
Returning to the posed question, the Court resoundingly held that, absent a finding that Parliament was unwilling, incapable, or persistently indifferent to its constitutional duty, particularly where legislative processes were demonstrably underway, the justification for imposing a structural interdict supervising the legislative process became considerably attenuated. To the Court, the availability of less intrusive remedies, such as declaratory relief affirming Parliament’s obligation under Article 169(2), suggested that the issuance of a supervised interdict was not the least intrusive or most proportionate means of vindicating the Constitution in that case. Further, directing the structural interdict to the Attorney General, who does not control parliamentary scheduling, debate, or voting, raised questions of enforceability and propriety, particularly in light of Mitu-Bell, which holds that remedial orders should be directed only at state actors with clear constitutional or statutory capacity to implement them.
Ultimately, the Supreme Court held that the structural interdict was inappropriate and that the declaration that Parliament is under a constitutional obligation to enact a law to facilitate the transition of the Tribunals from the Executive to the Judiciary within a reasonable timeline was sufficient. It is now for Parliament to decide what appears to be a reasonable timeline in its diary.
Two observations arise. First, we can concede that directing the structural interdict to the Attorney General is inappropriate for the reasons specified by the Supreme Court. There is no point in belabouring the point beyond that. But let’s return to the standard set for issuing structural interdicts to Parliament: the “incompetence, intransigence, or sustained inattentiveness of a duty bearer” standard. Does failure to enact a law for 16 years pass this test? Does the fact that the Bill has been introduced in every term count for something? The Bill was introduced in 2017; the term expired without enactment. The same happened in 2023. It was introduced again in 2025. If this is not, what is incompetence? Intransigence? Sustained inattentiveness?
What makes the Tribunals Transition decision even worse, however, is the reason behind the Supreme Court’s agreement that the standard was not met in the case. The reason given was that “the legislative process is underway”. The Supreme Court literally accepted Parliament’s “something is cooking” excuse. This newly imposed standard raises a deeper concern about the role of courts in ensuring the availability of effective remedies. If courts acknowledge a violation but decline to fashion a remedy capable of securing compliance, the practical value of judicial review is diminished. What does it matter for a court to agree that a case is justiciable only for it to conveniently fail to issue an appropriate and effective remedy?
The difficulty deepens when one considers the implications of that reasoning for the Finance Act 2023 Judgment suspended declarations. If courts cannot impose timelines for the discharge of constitutional obligations, it becomes doubtful whether they retain the power to issue time-bound suspended declarations. Such declarations derive their force from the timelines they impose, designed to avert the institutional or legal vacuum that would follow an immediate declaration of invalidity. Properly understood, a suspended declaration operates as a calibrated form of structural interdict, one that preserves constitutional order while compelling legislative action.
Once we remove timelines from suspended declarations, and we cannot retain them if a structural interdict could not issue in the Tribunals transition case, then both structural interdicts and suspended declarations deployed to legislative processes become hollow reliefs without any practical consequence. At that point, we cannot, at least in good conscience, any longer call them effective, or God forbid, appropriate remedies under Article 23 of the Constitution. To do so undermines the integrity of the Constitution.