Sub judice? I was in two minds over writing about this this week. After all there is a case before the Court of Appeal: the Attorney General and others asking the court to suspend the effect of the High Court BBI decision. But I decided to press ahead because I think it is important to try to explain the High Court’s ruling, and because the application before the Court of Appeal is not on the substance of the case - and will probably be dealt with by the time you read this. And finally because the whole idea of sub judice is ridiculous – when applied to comments in the media.
Sub judice means literally under a judge – the matter is a case in court and yet to be decided. Lawyers pronounce it “sub joodisay”.
It is wholly right that Parliament should not discuss cases sub judice. And they don’t. The National Assembly Standing Orders ban it, saying "A matter shall be considered to be sub judice when it refers to active criminal or civil proceedings and the discussion of such matter is likely to prejudice its fair determination."If Parliament should discuss an active court case, it might truly look as though there was an intention to interfere – or at least a possibility of affecting the court.
But any idea that what I write would affect how the Court of Appeal decides is far-fetched. Judges know better than to read something that might affect their judgment. Secondly, I am highly unlikely to say anything that they would not hear from counsel in court - if it is relevant.
Thirdly, judges are used to making decisions based on factors that are relevant, and excluding those that are not. Sub judice may make sense where there is a trial by jury (ordinary members of the public) going on – but we have not had those for decades (and they were only for Europeans in criminal cases).
So here goes.
The Court decided three things specifically about the President:
The President does not have authority under the Constitution to initiate changes to the Constitution. This can only be done by Parliament or through a Popular Initiative under Article 257.
Most of the focus was on the second point: Article 257. The court decided, on the evidence before it, that the initiative presented as a “popular [People’s] initiative” was really that of the BBI and, behind that, of the President. Yet this method of changing the Constitution was deliberately created for the people – not the President, the Attorney General or any other state officer, in their private capacity
The court had an interesting reason why the President, particularly, could not. The President would receive this Bill (like other Bills passed by Parliament) at the end of the process, and then decide, in the case of a constitutional amendment, whether it was necessary to take the question to a referendum. The President is a sort of umpire – ruling on what happens to the Bill. The President should not both be a player (being behind the Bill) and be an umpire (para 492 in the judgment).
Mr. Uhuru Muigai Kenyatta contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process.
“Authority assigned to a State officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of this Constitution” is what Article 73(1)(a)(i) says. The court was saying that the President acted in defiance of his constitutional duty by deliberately usurping a function reserved for the people.
This task was not in his job description, which is mostly found in Articles 131 and 132. It doesn’t matter what his motives were – however worthy. That promoting national unity is part of the job description does not justify something that is otherwise beyond his powers. Holders of offices created by the Constitution can only do what the Constitution allows.
The media have been trumpeting that the court paved the way for the President to be impeached. Incidentally, the court never uses the word “impeach.”
This is nonsense. The President has breached the Constitution repeatedly (Yash Ghai drew up a sort of Bill of Impeachment several years ago). One could start with the wilful refusal to perform the duty of appointing or promoting 41 judges.
But the only people who can start impeachment proceedings are MPs (at least one third of them); and two thirds of them must support the motion to send the case to the Senate for trial. And two thirds of the Senate would have to vote in favour for the President to lose his job.
It’s a political process that must have a legal foundation. Will it happen – because of the court’s decision or any other reason? Of course not.
Civil court proceedings can be instituted against the President while in office for anything done or not done contrary to the Constitution.
This aspect of the decision has also caused a tizzy in the media. There is talk of floods of people going to court to sue the President.
Article 143(2) of the Constitution says, “Civil proceedings shall not be instituted in any court against the President … during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.” This is not about criminal cases – they are prohibited unless international law says otherwise (like a crime against humanity).
Clearly this does not stop anyone suing the President for compensation for breaking a contract, or for negligently causing injury, for example.
So what is not allowed? To sue the President for something he or she has done “in the exercise of their powers”. That is – doing what the Constitution demands or allows. If the Constitution drafters had wanted to protect presidents from all court cases connected to the job they could have said “or purported exercise”.
We have just seen that the court said that the Constitution did not allow the President to initiate constitutional change – but he had done so. So he could be sued.
The court commented: “Assuming, in his tenure, the President embarks on a mission that is not only clearly in violation of the Constitution but is also destructive to the nation, would it not be prudent that he should be stopped in his tracks rather than wait until the lapse of his tenure by which time the country may have tipped over the cliff? We think that in such circumstances, any person may invoke the jurisdiction of this Court by suing the President, whether in his personal or in his official capacity; …” (para. 547).
People in the media have accused the court of disrespecting the President by calling him merely“Mr Uhuru Muigai Kenyatta.”
The court referred to “President Uhuru Kenyatta” in the very first line of the judgment, and to “the President” very many times. When discussing whether he can be sued in his personal capacity they used his name not his title – because it is the conduct of Mr Kenyatta that would be in issue. Why is this disrespectful?
OBSEQUIOUSNESS
But justified or not, why this obsequious response to calling a spade a spade – or Mr Kenyatta by his name? (And in case you don’t like the word obsequiousness, words meaning more or less the same include toadying, fawning, boot-licking and several less printable.)
Kenya is a republic. We do not have a monarch. People are elected to office; they don’t inherit it. They are to serve rather than rule the people (Article 73). Still less do they “reign” (a word appropriately reserved for monarchs).
People sometimes talk of “republican principles.” Wikipedia summarises these: stressing “liberty and inalienable individual rights as central values; the sovereignty of the people as the source of all authority in law; rejects monarchy, aristocracy, and hereditary political power; expects citizens to be virtuous and faithful in their performance of civic duties; and vilifies corruption.”
Pointless rudeness is undesirable. But obsequiousness is not required.
(Edited by Victoria Graham)
