President didn't initiate BBI process as private citizen, can be sued - Kairu

Article 143 of the constitution shields the President from criminal and civil proceedings while in office.

In Summary

•Justice Kairu agreed with the High court decision that Constitutional change is a preserve of the people exercising sovereign power.

•"To that extent, I am in agreement with High court. The framers of the constitution clearly identified what is the basic structure of the constitution and that it is applicable in Kenya," he said.

 

Appeals court in session on August 20th.2021/EZEKIEL AMING'A
Appeals court in session on August 20th.2021/EZEKIEL AMING'A

Justice Gatembu Kairu has upheld High Court ruling that the President can be sued in his personal capacity for anything done or not done in that capacity.

Reading his judgement on Friday at the Appeals Court, Kairu said the president was acting in his official capacity and not as a private citizen when he initiated BBI.

"The high court record continued to show there was no appearance for the first respondent, the president," he said.

"The president was served via email on 21st December. The president can be sued in his personal capacity during his tenure."

Article 143 of the constitution shields the President from criminal and civil proceedings while in office, in respect of anything done or not done in the exercise of his powers.

"There is no explicit ban against a person, including the president from promoting a constitutional amendment by popular initiative. All players including President and Raila Odinga qualify as promoters of the bill," Kairu said.

Justice Kairu agreed with the High court decision that Constitutional change is a preserve of the people exercising sovereign power.

"To that extent, I am in agreement with High Court. The framers of the constitution clearly identified what is the basic structure of the constitution and that it is applicable in Kenya," he said.

He said the need for a constitution that is able to evolve with social and political conditions is greatest in a developing country.

"..the really fundamental aspects of a constitution should be immune from alteration," he said.

However, he said the IEBC lacked the requisite quorum when verifying signatures submitted in support of BBI.

More to follow

 

Edited by N.Agutu