In the Kenyatta and Moi regimes, it was unimaginable for a High Court judge to indict the President for constitutional and/or legal transgressions. The confidence and the audacity of the Judiciary to hold accountable the Executive in general, and the Presidency in particular, has incrementally grown in line with the political growth and democratic development of the country.
By Franklin Mbogori
The question of whether a sitting President can be sued in civil courts for violating the Constitution and the law was revisited by the High Court in the recently delivered judgment in ‘David Ndii & others v Attorney General & others’, popularly known as the BBI Case.
Whether or not sitting heads of state are shielded by absolute immunity from any kind of litigation has been the subject of extensive debate in many jurisdictions. While some argue that a sitting president enjoys absolute immunity from prosecution for acts or omissions arising in the conduct of official functions, others think that such immunity is not absolute in civil prosecutions. In this essay, I argue in support of recent judicial pronouncements to the effect that a sitting president can and should be held personally liable for constitutional and legal transgressions.
In ‘Republic v Chief Justice of Kenya & 6 others Ex-parte Moijo Mataiya Ole Keiwua [2010] and Nyarotho vs. Attorney General & 3 others’ [2013], the High Court of Kenya held that a sitting President can be sued in his official capacity for constitutional and legal transgressions. In a radical departure from this position, the BBI judgement held that a sitting president could be sued in his personal capacity for violating the Constitution and the law.
Presidential immunity
The doctrine of immunity against prosecution of heads of state goes back to feudal England where the king could “do no wrong.” After the American Revolution, the doctrine was replaced by the idea of an accountable government. In the US, before the Supreme Court affirmed absolute presidential immunity from civil damage liability for official actions in ‘Nixon vs Fitzgerald’, lower courts had ruled that no such immunity existed. The US Constitution has no provision on presidential immunity from civil damage liability, and the immunity has been justified on public policy grounds, anchored on the separation of powers doctrine. In the Nixon case, the US Supreme Court justified absolute immunity on the President’s unique constitutional status and functions, and separation of powers. The Court reasoned that immunity was necessary to prevent interference with the president’s official judgment and prevent distraction from his duties.
Kenya
Before the BBI judgment, the question of whether the President can be sued in his personal capacity had not been answered. Relying on the case of ‘Nyarotho vs. Attorney General’ (supra), the court gave Article 143(2) a purposive interpretation. Article 143 provides thus: “(1) Criminal proceedings shall not be instituted or continued in any Court against the President or a person performing the functions of that office, during their tenure of office, (2) Civil proceedings shall not be instituted in any Court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.”
The Petitioners in the BBI case had argued that where the President acts in contravention of the Constitution he could be held personally responsible for any loss that may ensue as a result of his action or inaction.
The Attorney General (AG) on the other hand argued that civil proceedings against the President during his tenure of office can only be in the form of Judicial Review where the relief claimed would be a public law remedy and the AG would be the appropriate respondent.
The Court agreed with the petitioners and dismissed the argument advanced by the AG. While both the AG and the Petitioners agreed that civil proceedings could be taken against the President during his tenure of office, the point of departure was that the Petitioners believed that the President could be personally sued for contravening the Constitution and the law.
A reading of Article 143(2) may lead to a conclusion that the President enjoys absolute immunity from civil proceedings in respect of acts or omissions in exercise of presidential powers. The court disagreed with this view. Instead, it relied on Article 259 of the Constitution to give Article 143(2) a wider interpretation. Article 259 demands a purposive approach to constitutional interpretation to give effect to the objects, purposes and values of the Constitution.
The BBI court extended the frontiers of the doctrine of presidential immunity as applied in Kenya. Prior to the BBI judgment, Kenyan courts had established that the President could be held accountable for official acts only through a Judicial Review; he could not be sued in his personal capacity. The Nyaratho court had observed that if the President decides to disparage the Constitution and promote impunity, the Constitution is not helpless; judicial review will act against appointments made by the President in contravention of the law. The High Court had made a similar holding in ‘Republic v Chief Justice of Kenya & 6 others Ex-parte Moijo Mataiya Ole Keiwua’ (supra).
While the Nyaratho and Ole Keiwua courts appear cautious, restrained and non-committal in their pronouncement on the question of personal civil liability of a sitting head of state in official matters, the BBI Court is bold, courageous and activist in a positive sense.
While the Nyaratho and Ole Keiwua courts appear cautious, restrained and non-committal in their pronouncement on the question of personal civil liability of a sitting head of state in official matters, the BBI Court is bold, courageous and activist in a positive sense.
“If it is agreed that civil proceedings may be taken against the President, there is nothing in law that suggests that only a particular form of civil proceedings would be preferred to the others; to be precise, there is no legal basis for the Honourable Attorney General’s argument that whenever the President is sued in civil proceedings, the only means by which those proceedings should be taken is by way of an application for judicial review,” the court states in the BBI judgment.
As stated above, no court in Kenya had the audacity to pronounce itself on the question of personal civil responsibility of a sitting President before the BBI judgment. The Ole Keiwua bench was the first to hold that Judicial Review orders could be issued against the President thus:
“If public officers, including the President fail to act, and their failure harms the interests of the public and rights of individual citizens, we think their action or omissions are subject to judicial review. The point we are making is that the protection given to the President under Section 14 of the Constitution cannot be absolute and is only meant to protect the interest of the wider citizens who have a stake in the presidency or who have elected the President to be the symbol of unity and protection of collective and individual rights of all citizens… The constitutional provisions protecting the President from legal proceedings can be said to be against public policy when it is used in a manner likely to affect the interest of an individual or issues concerning human rights and environmental protection which is meant for the greater public good.”
During the KANU reign, it was unimaginable for a High Court judge to indict the President for constitutional and/or legal transgressions. Moi-era judges did not entertain the idea that a President could be sued even in his official capacity. In 1998 a High Court bench sitting in the case of Jean Kamau & another v Electoral Commission & 12 others quickly dismissed such fantasies.
“The provisions of section 14 of the Kenya Constitution are in the plainest language. They contain no ambiguity. The purport thereof is that no suit of whatever nature may be commenced or continued against a sitting President of the Republic of Kenya. It would be mischievous for anyone to attempt to go round these express provisions of the law and attempt to goad the court to vest in itself a power not conferred upon it by the Constitution. We entirely agree with the counsel for the 2nd respondent that this court has jurisdiction to summon a sitting President only when the issue of his election as a President arises. The jurisdiction is expressly provided in section 10(2) of the Constitution,” the court stated.
Evidently, the confidence and the audacity of the Judiciary to hold accountable the Executive in general, and the Presidency in particular, has incrementally grown in line with the political growth and democratic development of the country.
The radical departure from existing jurisprudence on the question of presidential immunity in civil proceedings is justified in my view. While the Constitution contemplates a President who is subject to proper mechanisms of constitutional checks and balances, this is not the case in Kenya.
Parliament is expected to provide political checks in the form of votes against presidential action. It can also impeach the President for gross violation of the Constitution and the law. The citizenry is expected to play its role of holding the President accountable at the ballot. The Judiciary has a constitutional mandate of checking presidential actions through its interpretative function. Regrettably, most of these mechanisms have failed. Parliament is, for all intents and purposes, dead. The masses are subdued if not ethnically polarized to exercise their franchise in any meaningful way. In the circumstances, only the Judiciary retains some capacity to check the excesses of a ruinous executive.
Parliament is, for all intents and purposes, dead. The masses are subdued if not ethnically polarized to exercise their franchise in any meaningful way. In the circumstances, only the Judiciary retains some capacity to check the excesses of a ruinous executive.
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