Uhuru enjoys absolute immunity, top court told
President Uhuru Kenyatta yesterday faulted the Court of Appeal’s declaration that he cannot initiate changes to the Constitution using the popular initiative route.
The President also opposed the August 2021 judgment that civil proceedings can be instituted against him arguing that he enjoys absolute immunity.
Through lawyers Waweru Gatonye and Kiragu Kimani, the Supreme Court heard that the Appellate judges erred in finding that the president can be sued in his personal capacity during his tenure in office.
The President is in the apex court in a last ditch effort to salvage the Building Bridges Initiative (BBI) that was declared unconstitutional by the Court of Appeal.
A seven-judge bench ruled that the President cannot institute changes to the Constitution using the popular initiative route saying that route was only available to the ordinary people.
“It is very important to note that the Court of Appeal came to this conclusion despite the fact that the President had been sued not in private capacity but on matters that he had carried out in his capacity as the President, Head of state and the commander of the Defence forces of the Republic,” argued Gatonye.
Distract President
Gatonye argued that Article 143 indicates civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure in office.
“Immunity is not unique to Kenya. It is a doctrine that has been adopted in many of the presidential systems. Reasons given for justification of this immunity is to avoid distraction of the President in order to ensure effective governance of the country,” argued Gatonye.
The Senior Counsel told the seven Supreme Court judges that if everyone was allowed to file a suit against the President, it would distract him or her from performing the more important duties for running the State.
“Immunity is also in the interest of national security. It cannot be doubted, that in the course of doing his work the president is fed with a lot of information regarding national security,” he said.
Gatonye argued that the President was the chief diplomat for the country in dealing with other countries of the world and in the course of doing this he gets a lot of information that is useful to the State.
“One would wish that it would never come to a point where a court would order the President to make a disclosure. Why did you do this? What are the reasons that made you make this decision? It would clearly not be in the interest of the State,” he argued.
According to Gatonye, presidential immunity is there to preserve national security and protect the dignity of the Office of the President.
“One would not want at any one time to see a president being ordered to come to court and to account for his actions. Three arms of government are supposed to work together and it would create serious tensions that would not be good for the country,” he said.
Gatonye said though the President enjoys absolute immunity, there are provisions for questioning his decisions that affect a particular citizen.
International law
“You can always sue the Attorney General through Judicial Review Procedure for actions done by the President in the name of the government, even if you cannot file a suit against the President during the time that he is the President there is clear provision in Article 143, you can file that cause of action against the President when he retires,” he argued.
He noted that if the President is involved in gross violation of the laws of the State, one can initiate impeachment proceedings against him or her.
“So this immunity does not create a monster and is totally warranted in law to enable the President to effectively carry out his duties as president…and again if the President commits crimes against International treaties, he can be dealt with under the international law,” he argued.
