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Appellate judges erred on presidential immunity, court hears

By Betty Njeru - January 18th 2022
Solicitor General Ken Ogeto at the Supreme Court during the commencement of the BBI appeal case. [Collins Kweyu, Standard]

The Office of the Attorney General holds that the Court of Appeal erred in its August 2020 ruling that the president can be sued in his personal capacity during his tenure in office.

Appearing for the State Law Office Tuesday, Lawyer Kamau Karori argued that it is necessary for the Head of State to make key decisions that will safeguard the interests of the country.

In last year’s Appellate Court ruling, three judges ruled that the president is not immune to litigation in his personal capacity and that he may be sued outside his Constitutional duties.

But Karori argued that the Court of Appeal erred in its interpretation of Article 143 (2) of the Constitution, which provides that “civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.”

“If it was possible to sue the President for every action that he takes, there would be many people who don't agree with his decisions for political reasons that would be filing cases against him.”

He said that for instance during the emergence of the coronavirus pandemic in the country in 2020, the president was forced to make an urgent decision to protect Kenyan citizens by instituting a lockdown, whose consequences were financial and economic slowdown.

“If the president is detracted because of fear that every decision he makes may attract civil liability against him, it would have a chilling effect on the ability of the president to make decisions important for the people of Kenya,” the lawyer said.

Solicitor General Kennedy Ogeto also tore into the contentious question of presidential immunity, terming it redundant.

“In order to determine whether the president has done or not done something contrary to the Constitution, there has to be judicial process…and this defeats the whole essence of immunity as he would have to participate in the process to prove his innocence,” Ogeto, appearing for the Attorney General argued.

Because the Court of Appeal had upheld a High Court finding that the President can be sued in his personal capacity, the Supreme Court judges said they would determine whether civil proceedings can be initiated against the President or any person acting in that capacity.

Tuesday forms the first day of the hearing, which will carry on till Thursday.

Other key issues in contention at the apex court include; the basic structure doctrine and whether it is applicable in Kenya, and whether the Constitution can only be changed by following four steps in sequence: civic education, public participation, constituent assembly debate, and a referendum.

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