Parliament, not courts, has power to supervise President

By OKIYA OMTATAH

I have petitioned the High Court to clarify its jurisdiction regarding the constitutionally enshrined immunity from legal proceedings that an incumbent President enjoys. I also want the courts to declare what function provisions on impeachment of the president serve in our Constitution.

My position is that we have a solidConstitution that states clearly that Parliament, not courts, should prosecute the President whenever he violates the law.

I am not saying that the President is above the law; I am just pointing out the correct forum for putting the President on trial. And by so doing I am also breathing life into Article 145, which empowers the Senate to be a court for trying the President. Hence, the need to elect Senators who can also have the capacity to be a court for holding a Kenyan President accountable whenever the need arises.

The controversy over the exercise of the High Court’s jurisdiction in relation to the President’s direct exercise of his executive powers in the appointment of 47 county commissioners raises fundamental constitutional questions.

Beyond the constitutional duty to obey court orders is the question of the separation and balance of powers as laid out in the Constitution of Kenya 2010.

In exercise of his powers under Sections 23 and 24 of the former Constitution, which are still in force, President Kibaki personally appointed county commissioners via a Kenya Gazette Notice.

On May 13 and 17th May, respectively, a Judicial Review Application, and a Constitutional Petition, were filed in the High Court at Nairobi seeking to quash the Presidential appointments for being unconstitutional. On 29th June, after hearing the two cases, Lady Justice Mumbi Ngugi declared the appointments unconstitutional and purported to quash them.

I posit that it is unconstitutional for anybody to challenge in court the legality of the said appointments, or of any other direct action of the President in exercise of his executive powers, before the expiry of President Kibaki’s term of office.

Under Section 14 of the former Constitution, which remains in force until the elections, the President enjoys absolute immunity from legal proceedings while in office. Under Section 59(3), (still in force), where the President is alleged to have violated the law, Parliament can pass a vote of no confidence in his Government.

Further, though suspended until the coming elections by dint of Section 2(1)(c), Article 143 of the Constitution of Kenya, 2010, also grants the President absolute immunity from legal proceedings, during his tenure of office, in respect of anything done or not done in the exercise of his constitutional powers, except where the President may be criminally prosecuted under any treaty to which Kenya is party and which prohibits such immunity.

Under Article 145, Parliament can impeach the President or indict him for a violation of the Constitution or of any other law; for committing a crime under national or international law; or for gross misconduct. If the President is impeached he shall vacate office.

Consequently, during the President’s tenure in office he can only be held accountable for any alleged illegality by Parliament. No court has jurisdiction to sit in judgement of the President whilst in office to determine the legality or otherwise of anything he has done or omitted to do in exercise of his powers under the Constitution or any other law.

The immunity from legal proceedings belongs to the President as an individual, not to him as part of the Executive.

Alleged violations

And since the Attorney General is the principal legal adviser to the Government not to the President, and he represents the national Government not the President in court, the AG can only be sued on behalf of the Government, where alleged violations are committed by institutions exercising executive powers.

The AG cannot be sued on behalf of the President where the latter allegedly violates the law personally. Neither can Cabinet ministers and other agents of the Executive be sued on his behalf.

Where the President has allegedly violated the law, he must personally face the music, yet the Constitution grants him absolute immunity from legal proceedings during his tenure. And if you don’t sue the President, how on Earth can a court grant orders against him yet he was not part of the suit? The court was wrong and acting in vain when it issued order against the AG and the PS Internal Security for an appointment the President made in his official capacity, citing sections of the Constitution that empower him to do so.

The import of these immunity and impeachment provisions is that the President is held accountable politically and not judicially. Because of the special and political nature of his duties, subjecting his actions to review by the judicial branch might not consider the political dimensions of his decisions, and may lead to a deluge of politically–inspired lawsuits which could distract the President and compromise the efficacy of his office.

In making the President accountable to Parliament during his term of office, the Constitution has intentionally preferred that the political process, rather than the judicial process, be the judge of alleged illegality of direct presidential exercise of executive power. The President’s constitutional immunity from prosecution calls for great deference from the courts. The Judiciary should defer to elected branches and exercise their power without subverting other provisions of the Constitution.

If the courts ignore constitutional limits on their power regarding presidential immunity, the President will be controlled by the will of unelected judges rather than by that of voters through their elected representatives. The courts cannot become such political creatures and not alienate the elected branches to the point of revolt against judicial authority.