• The tradition in the English system that Kenya had thrust upon it was that the courts were the King’s and the monarch could not be taken to court for any reason.
• In some countries, immunity of the President in the Constitution has been treated as preventing his or her decisions being challenged at all.
You may recall that the question whether the President could be sued personally - and the High Court’s answer – caused almost as much of a stir as whether the President could sponsor a popular initiative.
Commentators thought it was terribly disrespectful for the High Court to refer to him as “Mr Uhuru Muigai Kenyatta”. I am discussing it precisely because it attracted a lot of attention.
It was mildly amusing to see one of the newspapers describe the late President Mwai Kibaki having “demystified the presidency”. It seems that many people still want a President to be surrounded by exaggerated deference and mystique.
The issue was not very important in the case and even the High Court, which held that Mr Kenyatta could be sued personally, did not actually impose any consequences on him.
The tradition in the English system that Kenya had thrust upon it was that the courts were the King’s and the monarch could not be taken to court for any reason.
In some countries, immunity of the President in the Constitution has been treated as preventing his or her decisions being challenged at all. This has not been an issue in Kenya.
Our courts have sometimes been quite frank in criticising the President. In one case, the Court of Appeal said, “Well meaning as the directive may have been, it gave the impression, and we believe any reasonable person would have perceived it as such, that the President was directing the EACC on how and within what period to discharge its mandate.”
Our Constitution has accountability as one of its national values – and being liable to be sued or prosecuted for wrongdoing is an important way of achieving accountability.
WHAT THE CONSTITUTION SAYS
Article 143 draws a distinction between criminal law and civil law. Criminal prosecutions are brought on behalf of the people of Kenya – these days by the Director of Public Prosecutions. Under the Constitution, the President cannot be prosecuted for any crime unless it is a crime under an international treaty that Kenya is a party to, and that does not allow immunity of Presidents. This would include things such as crimes against humanity.
The immunity of the President applies only while he is in office. So if he committed any crime while he was President (murder, dangerous driving, theft or taking a bribe, for example), he could be prosecuted after he leaves office.
How about non-criminal cases – like breaking a contract, or driving negligently so causing an injury which the victim would like to claim damages for, or if the President’s wife wants a divorce? There is no obstacle to the President’s being sued for these. They have nothing to do with his powers under the Constitution.
On the other hand, if the President does something as President, which is clearly within his powers, he cannot be sued as an individual, even if serious consequences follow for people.
And often, the issue is not whether the holder of an office – President or not – had the power to do something, but whether there are limits on how it might be done. Cases about appointments to parastatals have held that they must be done in a way that is competitive. And clearly no-one – President or not – must make appointments in a way that is discriminatory (a violation of Article 27), or takes wrong factors into account (a violation of Article 47 on fair administrative action).
No-one is suggesting these wrongful decisions cannot be challenged – they can and are. Just as they are when made by Cabinet Secretaries or civil servants.
What about if he does not have constitutional power? In the BBI case, it was generally agreed by judges, even in the Supreme Court, that the President had no power to promote a people’s initiative to amend the Constitution. But this was not clear from the beginning – and a few judges still disagreed.
The view of the Attorney General (for the government) was that the President could not be sued in his own name for anything done as President, however, wrong and unconstitutional. What he did would have to be challenged by suing the Attorney General and for the legal remedy called judicial review – which has limited remedies. Like you can’t get compensation in a judicial review case. The decision in a judicial review case is against the decision or action not against the person who does wrong.
SHOULD HE BE SUED PERSONALLY?
The High Court disagreed with the Attorney General. It imagined a President engaging in some course of action that would cause great damage to the nation. It said, “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?”
The Supreme Court took a different view. Basically, the judges held that the President could not be used personally for anything connected with his presidential functions. One judge said the President is always the President, and always had this immunity for what he does as President
This may be right – though maybe for a slightly different reason. To take the very question could the President support a popular initiative?
Until we had the Supreme Courts’ ruling (by a majority) that he cannot, the answer was uncertain. But if you could sue the President for such a wrongdoing, you would have to involve him right from the beginning, even though at that stage it was not clear if he had violated the Constitution or not. This is because unless a person is a party to a case the court cannot make any order against them.
In other words everyone who argued that the President had violated the Constitution while purportedly carrying out presidential duties would be able to sue the President, even though it would not be clear until the end of the case whether the President has violated the Constitution or not.
Does it matter? You can imagine many people would try to sue the President personally – for political advantage, as well as for wrongs real or imagined. The President would be forced to defend himself. For a personal action the Attorney General cannot defend him.
Imagine the sorts of cases – is the President liable for signing a Bill that turns out to be unconstitutional and causes people loss? If he defames someone in a speech is that in the course of his presidential functions or not? If he makes an appointment in a discriminatory way, can he be sued for violation of Article 27 on equality?
And yet if Nyayo House torture was revived and could be traced to the President’s directions, he should be liable personally.
The power to impeach a President and remove him is designed partly to enable a President to be exposed to the possibility of being legally liable – after removal. But we know it is unlikely so long as the President still has political support in Parliament. And while it may be possible to stop a politically motivated and unfair impeachment in court, the courts could not compel a reluctant National Assembly to impeach him. Impeachment is a weak solution.
Generally we are liable in our lives for the wrongs we do that cause loss to others. Why not those who govern us? I agree with the UK judge who refused to give public servants immunity from civil actions on the basis that they would be inhibited in their actions if they feared being sued: “Her majesty’s servants are made of sterner stuff”.
On the other hand the risks of many actions being brought against the President are real. And our constitution increases the range of possible actions because it allows people to sue for violations of their human rights and sometime to get compensation – not just a ruling that the action was wrong. And we can all sue in the public interest even if we have not personally suffered.
The issue is not easy to resolve.