Governors should not have immunity from prosecution – and should the President?

Apparently the Council of Governors, far from being embarrassed that their colleagues face serious allegations, feel that they need protection from the law, and should be immune like the president.

By the way, this would need an amendment of the Constitution – and probably a referendum, because it affects the national value of accountability. Hopefully Kenyans would reject it.

The history

“The King can do no wrong” one learned in law school. This did not, of course, mean that kings literally could not do anything wrong. Plenty were land grabbers, thieves, adulterers or murderers. But the only way to penalise them was to get rid of them (by war or murder, for example). In the days of absolute monarchy the courts were something that the king set up to control his subjects. The king could not be taken before his own courts.

Types of immunity

Some degree of immunity from being prosecuted for a crime–for heads of state and for legislators is common world-wide. It may apply only to acts done in the person’s official capacity. It may be limited to only acts in Parliament – basically to speaking and voting. It may protect an office holder against any criminal prosecution while they are holding office. And sometimes the immunity can be lifted, usually by Parliament itself.

Modern heads of state

But now we believe in equality before the law and the rule of law - don’t we? Our Constitution certainly says this repeatedly, like most other modern constitutions.

But our Constitution also says that there can be no criminal proceedings against presidents during their tenure of office (Article 143). Note that this is not limited to alleged crimes committed while in office.  If X committed a crime in 2020 and was elected president in 2022, perhaps remaining in office until 2032, that 2020 crime could not be taken to court until 2032, by which time witnesses might have died, their memories faded, evidence disappeared.

Heads of state in many other countries have similar immunity. Oddly enough, the American Constitution is not too clear on the subject. Even today scholars differ, and may even change their minds, on whether an American president can be indicted while in office. One distinguished scholar put the argument against like this: “the People have the right to a vigorous Executive who protects and defends them, their country, and their Constitution. Temporary immunity is the only way to ensure both of these things.”

In 2019, however, the lower house of the Mexican Parliament voted to remove the immunity of presidents.

Many modern heads of state are merely ceremonial; the head of government is the prime minister. But even such presidents often have immunity. The President of India, and those of Singapore and the Republic of Ireland, cannot be prosecuted for anything while in office. But the King of Malaysia (a formal headship rotating among traditional rulers) can, and must step aside if charged.

The favourite example of a president in a “semi-presidential system”  – in France – is similarly immune while in office.

Prime Ministers

In countries with parliamentary systems of government  – and they are many – the head of government is not the president (or monarch) but a prime minister.

In some such countries parliamentarians have complete immunity from prosecution unless Parliament itself votes to remove the immunity. These tend to be countries in continental Europe, including France, or countries in the European tradition. This would benefit prime ministers as well, because they are also MPs. And since they normally have the support of a majority of MPs, their immunity is particularly unlikely to be lifted.

In many countries outside that continental European tradition, there is no such wide immunity. Prime Ministers of Canada, India, Ireland, Australia, New Zealand, and the UK can be prosecuted. They have some limited immunity because they are MPs: it is an important principle that MPs cannot be prosecuted for their acts as MPs in the house. This enables them to express their views freely, and to vote according to their consciences (but more likely according to party whips). For anything else – speeding, tax evasion, cheating on expenses, corruption or whatever, they are in no better position than the ordinary citizen. Nor are the prime ministers.

Israel recently changed its law to provide that immunity is no longer automatic: MPs must ask Parliament to grant it. Prime Minister Netanyahu – undergoing investigation for corruption – has just asked. The grounds for immunity under Israeli law are limited, and the question whether Netanyahu’s request falls within the law may end in court. An Israeli constitutional law professor says, granting immunity would be “a fatal blow to the rule of law and equality before the law.” Voters don’t usually like immunity – this might cost Netanyahu the next election. 

Why the special position for Presidents?

In modern parliamentary systems the head of state must do almost everything official in accordance with the directions (tactfully called “advice”) of the prime minister. The head of government is clearly the prime minister. So if parliamentary democracies can survive with their heads of government at risk of being prosecuted, why should countries with presidential systems – like the USA and Kenya – insist on protecting their heads of government? And while presidents usually have deputies to step in, prime ministers often do not.

Politically motivated prosecutions

One argument in favour of immunity is often that prosecutions can be politically motivated and designed to interfere with government. In countries where government can decide who is prosecuted the biggest risk is that opposition MPs will be prosecuted. This is why some immunity for MPs is justified.

But these days decisions about prosecutions are often made by independent bodies. In Kenya the DPP is supposed to make decisions about who to prosecute without any direction from anyone else. And – unlike again some continental European traditions – there is no rule here that if there is an allegation of crime there must be a prosecution. The DPP has a discretion, a choice, and that choice must be exercised in the public interest, as well as taking into account the strength of the evidence.

One problem is that, in Kenya, no-one seems to believe that anyone will just do their job according to constitutional or other rules and principles. Every decision by a public officer is assumed to be politically motivated. Or ethnically motivated (much the same thing).

Back to governors

The governors’ trade union insists that in other countries their equivalents have this immunity. They are wrong. True the governor of an Indian state has immunity like the president. But an Indian state governor is not the head of government, but the rough equivalent at state level of the largely ceremonial national president. American state governors – who are heads of their governments - have no immunity.

Arguments about the need for presidential immunity are even less convincing when applied to governors, especially in our system where the powers of counties are pretty limited.

Corruption is never easy to prove. Paper evidence can disappear. The corrupt can bribe witnesses. This is why the courts have told governors to keep away from their offices. You can imagine what might happen if a governor was not even charged, because of immunity, but left free to tamper with evidence. And imagine how the public would feel if a governor against whom there seemed to be strong suspicion of murder could not be touched until he/she ceases to be governor, perhaps removed by impeachment. 

How about the Deputy President?

The Deputy President has no blanket immunity under the Constitution. But he or she cannot be prosecuted if “performing the functions of the office” of the president (Article 143(1)).

This must mean that there can be no prosecution against the Deputy President (or anyone else) who is “acting President”.

Finally

The immunity of presidents is a throwback to pre-modern monarchs. Should they have any immunity, other perhaps than for civil actions (not criminal prosecutions) for what they do as president?