• Through lawyers Waweru Gatonye, Mohammed Nyaoga and Kimani Kiragu, the President said he has absolute immunity against any court proceedings during his term of office.
• On Wednesday, Gatonye told the court that President Kenyatta was condemned by the High Court even though he was not represented in the case.
Image: JACK OWUOR
President Uhuru Kenyatta has asked the Court of Appeal to set aside an order that stripped him of his immunity from being sued, saying he was condemned unheard.
Through lawyers Waweru Gatonye, Mohammed Nyaoga and Kimani Kiragu, the President said he has absolute immunity against any court proceedings during his term of office.
The President made the submissions during the appeal against the May 13 High Court ruling that annulled the Building Bridges Initiative process and held that he can be sued.
On Wednesday, Gatonye told court that President Kenyatta was condemned by the High Court even though he was not represented in the case.
He faulted the court for finding that the President should have responded to the petition in person or through his legal counsel.
“Surprisingly, the judges did not ascertain whether the President had been served. It is true that he was never served with the proceedings despite the fact that he was sued in his private capacity,” Gatonye said.
He told court that there is no evidence of service at all by the petitioners contrary to rules that stipulate that a party be served.
“No one should be condemned without being heard, failure to serve proceedings is a serious omission in litigation,” he said.
The seven-judge bench comprising Court of Appeal president Daniel Musinga and judges Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuyoitt also heard that President Kenyatta has absolute immunity against civil and criminal proceedings.
Nyaoga said that if anyone is aggrieved by the President’s actions, the best course of action would be to go to Parliament and ask for his impeachment.
Nyaoga had a hard time explaining what he meant by absolute immunity as Justice Kiage kept asking if he meant that the President cannot be sued at all.
Lawyer Kiragu maintained that there was no evidence that the President did not follow the Constitution while setting up the BBI steering committee.
Kiragu said there was nothing that bars the President from initiating either a popular or parliamentary initiative.
“He was not acting in his capacity, he was acting under the authority given to him by the Constitution,” Kiragu said.
He faulted the High Court for failing to consider that any person can move to Parliament, including the President.
Earlier in the hearing, the court heard that Suna East MP Junet Mohamed and former MP Dennis Waweru are the proponents of the BBI process.
Waweru and Mohamed are the BBI Secretariat co-chairs.
“The promoters, in this case, were Junet and Waweru but because anyone is allowed to support the initiative, the President did support,” lawyer Otiende Amollo said.
Otiende, who is representing the BBI secretariat and ODM leader Raila Odinga, faulted the lower court for not considering the listed promoters of the BBI in their judgment.
Otiende said the two co-chairs initiated the Bill and engaged with the IEBC and then collected the signatures.
“The IEBC accepted Junet and Waweru initiative and were authorised to collect signatures from Kenyans,” he said.
The ideas by Waweru and Junet were reduced into a bill and that’s where the popular initiative started.
Otiende also said that even the joint Justice and Legal Affairs Committee report produced before the court shows that the two were the promoters of the BBI. He said the President did not initiate the process, even though he has a right to do so.
“Anyone can campaign for any cause. So are these rights limited to exclude the President? It’s a misconception that the President can only go through Parliament,” he said.
Otiende also said there cannot be a conflict of interest where the President's role is ceremonial.
Lawyer Lucy Kambuni said a promoter need only get one million supporters to meet the threshold. The promoter does not have to go to all 47 counties to get support for the initiative.
“To insist that they carry out public participation in the manner they did is wrong; they only needed to get the one million signatures,” she said.
Otiende also asked whether one can approach the High Court for an advisory opinion on the basic structure, arguing that you can only approach the Supreme Court, which is the one mandated to issue an advisory opinion.
“Now that the court has ruled that Wanjiku is the only person who can initiate popular initiative, then how will he or she approach the Supreme Court if they want to change the basic structure?” he asked.
The National Assembly has also asked the court to overturn the decision, saying it was against the law.
Lawyer Josephat Kuyoni termed it impossible to make hyper amendments to the Constitution as had been alluded to by the High Court. He said it was premature for the court to deal with the matter brought to them by the petitioners.
“The action had not crystallised, the bill had not been published; what would have happened if the bill would not have passed? It would have been an academic exercise,” Kuyoni said.