President Uhuru Kenyatta says he has absolute immunity and cannot be sued for performing presidential functions.
On the second day of the BBI hearing that started on Tuesday, President Kenyatta, through Lawyer Waweru Gatonye, says the lower courts erred in law by finding that he can be sued.
The Court of Appeal and the High Court ruled that the President can be sued in his personal capacity during his tenure in office for anything done or not done.
Gatonye told the court that the appellate court came to this conclusion even though the President had been sued not in respect of a private or personal matter but in respect of what he did as a head of state.
Gatonye further said the law says 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 respect of anything done or not done in the exercise of his power.
He submitted that suing the President is a way of destructing him from performing his duties.
“If it were that it was allowed for every Tom and Harry to file suit against the President, it would distract him from performing the more important duties for running the state,” Gatonye said.
He said one of the justifications for Presidential immunity is the preservation of national security, and there is a need to protect the dignity of the Office of the President.
“It cannot be doubted, but there are three main organs of state and our constitutional setup, and those institutions require to act in a dignified manner so that the public can have confidence in them,” he said.
He posed a scenario where it would come to a point where the court would ask the President to come to court and account for his actions.
On the issue of whether the President can initiate a popular initiative, Lawyer Kiragu Kimani said the court erred in finding that the President cannot initiate a popular initiative.
Kiragu said in the amendment to the Constitution, through the popular initiative, the people can delegate sovereign powers to those they elect, including the President.
“But the ones that donate the power to have no business in initiating changes through a political or popular initiative, these are inconsistent in my humble view,” Kiragu said.
Edited by Mercy Asamba
