John Orenge  

Having chosen a presidential system of government, Kenyans opted for a President who is elected by the majority.

Specifically, that an elected President should garner 50+1 per cent of the votes cast in a general election; and at least 25 per cent of the votes cast in each of more than half of the 47 counties. 

It is discernible from this constitutional formula that the peoples’ intention was that the President should be one who is preferred or chosen by majority if not all Kenyans.

This is because the Constitution, which was adopted by the people, bestows upon the President the title and position of Head of the State and Government; and further, recognises him as a symbol of national unity.

Apart from the position held by the President, he also exercises executive authority on behalf of Kenyans as set out in Chapter 9 of the Constitution.

Therefore, the President is vested with certain important and unrestricted political powers, which in exercising such powers requires exercise of discretion.

It is precisely for that reason that the President enjoys protection from civil proceedings under Article 143 (2) which reads: 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.

The justification of such protection or immunity is to ensure the President, while carrying out his important functions, is not impeded or embarrassed by having to deal with suits and civil claims.

Further, it is the need to protect the dignity of the President’s office and to ensure he has as much freedom as possible in the due execution of the duties of this high and exacting office.

Is the immunity enjoyed by the President from civil proceedings absolute? Article 143(2) & (3) infers that, the President’s immunity is limited; (i) to proceedings instituted during his or her term in office and (ii) to anything done or not done in exercise of the President’s powers under the Constitution.

In other words, the immunity does not extend to acts or omissions that have resulted in civil proceedings commenced prior to assumption of the President’s office or that were not in exercise of the President’s powers.

However, the President remains accountable to his country as a political agent and the law outlines mechanisms to check this.

Article 144 outlines the procedure for the removal of the President from office on grounds of incapacity while Article 145 provides for removal through an impeachment.

Both processes include comprehensive checking mechanisms by Parliament and Judiciary.

That is why we must examine the peculiarity of proceedings brought against the President and question their validity.

In the instant case of appointment of judges, the power of appointment vests with the President.

If anyone deems the President to have failed to execute that power, the procedures outlined in law to check the powers of the President should be invoked.

The Constitution does not envision a situation permitting transfer of constitutional obligations without legal or constitutional basis.

To do so, would be to legislate outside the constitutional parameters and establish an extra-constitutional government.

In the end, presidential immunity to civil proceeding cannot be said to be against public policy or public interest having been derived from the Constitution, the will of the people. — The writer is a lawyer and a political scientist