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January 22, 2019

Don't change Constitution just to protect governors

Elgeyo Marakwet governor Alex Tolgos./FILE
Elgeyo Marakwet governor Alex Tolgos./FILE

Only one person enjoys immunity from prosecution in Kenya and that is the President.

The Deputy President, Speaker, Attorney General, Director of Public Prosecutions, ministers and MPs are not immune from prosecution.

But even that presidential immunity is not absolute. According to Clause 143 of the Constitution, immunity "does not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is a party". So, for instance, a Kenyan president could be prosecuted for money laundering under international law.

It is therefore absurd that the Council of Governors is requesting immunity from prosecution for governors.

Moreover Clause 186 of the Constitution states that a governor can be replaced if he or she "is convicted of an offence punishable by imprisonment". That means a governor can be prosecuted while in office.

So the governors would need to change the Constitution to get the immunity they are demanding. And however humiliating the arrest of Busia governor Sospeter Ojaamong might be, that does not justify changing the Constitution.


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