President doesn’t have absolute privilege on trials

Bernice Mbugua @BerniceMuhindi

The High Court yesterday ruled that the President does not enjoy absolute immunity from the intervention of the court by way of judicial review or constitutional declarations.

Justices   William Musyoka, James Wakiaga and George Dulu ruled that the President can be sued for any actions or omission by him in exercise of his constitutional and statutory functions.

The three Judge bench issued the ruling in a petition filed by Katiba Institute which seeks to stop the appointment and swearing in of a partial list of 41 judges recommended by Judicial Service Commission for promotion.

“We hold that a progressive and holistic interpretation of the Constitution should be that the President does not enjoy absolute immunity. 

If a party is aggrieved by anything done or not done by the President, the available remedies are either judicial review or constitutional declaration orders,” the three judges ruled.

Katiba Institute has sued the President, Attorney General (AG) Kihara Kariuki and the Chief Justice saying there is reasonable grounds that the President is planning to appoint only a few of the judges.

The AG filed a preliminary objection to the suit arguing that the president cannot be sued on his own capacity, saying that article 143(2) grants the President immunity from civil proceedings in any court during their tenure of office.

The judges however noted that although there is immunity for the President from prosecution, the same does not bar prosecution of civil or constitutional nature which challenges the excess of powers of the President.

“But the  proceedings ought not to be commenced against the President  as the individual occupant of the office or in his official capacity but rather the same ought to be against the AG , that way there is compliance  with the Constitution,” they ruled.

The judges did not strike out the President’s name from the petition, saying the misjoinder was not fatal to the enforcement of fundamental rights.

The lobby group in their suit papers wants the court to issue an order stopping the Judicial Service Commission from assigning duties to judges appointed from the partial list of the 41 nominees.

Katiba Institute claims that a partial appointment of the nominated judges, would illegally serve as a constructive removal of any nominee, who is already a sitting judge and is excluded from the partial appointment.

According to the lobby group, the anticipated selective appointment of judges would undermine the functions and powers of the Judicial Service Commission and the functioning of the Judiciary.

“Should the Executive appoint only a subset of the judges, it would constitute an improper and unconstitutional extension of the role of the Executive and occasion constitutional crisis,” stated the group.