Charles Njonjo

Former Attorney General Charles Njonjo takes oath of office soon after independence.

| File | Nation Media Group

The origin of President, MPs and judges’ immunity from legal suits

What you need to know:

  • The same privileges and immunity enjoyed by the Executive, were extended to Parliament and the Judiciary.
  •  

Oh, so we can actually sue the President on literary anything? This is a new development in our jurisprudence and former Attorney-General Charles Njonjo, the man who authored the clause that shielded President Jomo Kenyatta from any civil and criminal prosecution, must be seething with anger.

 It seems that we are starting to rethink immunity granted to members of various institutions, over sins of omission and commission, while carrying their official duties.

 There was a time in 1965 when Mr Njonjo was asked by a Nation journalist, John Platter, on why he had set the president to be above the law. Mr Njonjo was candid. “Just as in Britain where the Queen is the Head of State and is the fountain of justice, so too is the president here,” he said, “in Britain the Queen is above the law and we see no reason why our president shouldn’t be too. For instance, why should he be liable for prosecution, as we are, if we break a traffic law?”

The question of sovereign immunity under domestic law and under international law has always interested legal scholars and most Commonwealth countries tend to mimic the British monarchy system where the King or Queen is the Head of State and above legal scrutiny.

But in some countries, such as Kenya, where we have the Head of State serving as the head of government – the combined positions usually pose some legal dilemma and confusion. And that appears to be the dilemma that faced the High Court bench when deciding the Building Bridges Initiative case in which they held that the president can, indeed, be sued and named in proceedings and that he should enter appearance.

Attorney-General, Kihara Kariuki, had argued that it is not that the President cannot be held to account for his actions while in office, but that whenever he has to be sued, the proper procedure to adopt is the judicial review proceedings in which the AG, rather than the President, would be named in the proceedings as the respondent. The bone of contention was on who should be named in the proceedings.

Immunity concepts

While we have borrowed some of the immunity concepts from UK where the British monarch, Queen Elizabeth II, is the sovereign, the Kenyan constitution regards the people as the sovereign – just like in the US.

Where, then, do we draw the line of immunity given to the three arms of government: Executive, legislature and Judiciary? Can we banish the very doctrine of immunity from our laws – and is the immunity given to Executive, Judiciary and legislature inconsistent with our constitution?

What are the ramifications of this week’s ruling – or are our courts getting careless? There is a whole body of literature on crown, state and sovereign immunity for those who want some deeper understanding.

But some legal scholars are now appreciating that sovereign immunity is an anachronistic relic of the English law which had assumed that the King could never err.

But still, nations want to protect their symbols of national unity; especially the presidency from harassment. In a 1982 ruling, the US Supreme Court held in Nixon v. Fitzgerald that the president enjoys absolute immunity – which is drawn from sovereign immunity – from civil litigation for official acts undertaken while he or she is president. The same applies to members of the Judiciary.

The doctrine appears to have gained ground in the 13th century during the reign of King Edward I when it was held that the monarchy was not suable unless it had consented to the suit.

Actually, the last time an English sovereign appeared in court was in 1649 when King Charles I was accused of starting war with parliament and in which thousands died. While he had been accused of treason, a special court – where he refused to attend pleading immunity– found him "guilty of all the treasons, murders, rapines, burnings, spoils, desolations, damages and mischiefs to this nation” and ordered for his beheading. He was beheaded on January 30, 1649 outside the Banqueting House in Whitehall and his death triggered the Third English Civil War.

Ever since, the King and Queen have rarely been questioned and this has entrenched the common law immunity that was enshrined in our constitution in 1964 – albeit with different reactions.

In terms of developing jurisprudence on sovereign immunity, the UK seems to be lagging behind – and their Kings and Queens could still do no wrong. This doctrine was once tested in 1911 in the UK when a French journalist wrote an article alleging that King George V had entered a morganatic marriage with an admiral’s daughter in Malta. The journalist, Edward Mylius, accused King George V of bigamy and of contravening the Royal Marriages Act of 1772. The import of that accusation was grave. If, indeed, King George V had married an Admiral’s daughter, then she was the rightful Queen of England, and not Queen Mary, and her children were the rightful heirs to the throne.

Winston Churchill

The King decided to sue but he was advised by Winston Churchill that he could neither appear as King or in private capacity as a witness simply because this was his own court! The Lord Chief Justice Alverstone also decided that the King could not be ordered to give evidence. This position was once again tested nine years ago when Paul Burell was in 2002 accused of stealing Princess Diana’s property and he alleged that he had talked to the Queen about their safekeeping.

Rather than call the Queen, as a witness in the case, Prosecutor William Boyce QC dropped the case arguing that it was no longer realistic to get a conviction. Thus, over the years, the British monarchy has not only been shielded from appearing in their courts but also from prosecution.

But now, in Kenya, we seem to be adopting the original tenets of the American constitution, that all were equal before the law and where nobody is above the reach of the law. While this was the foundation of the American constitution in 1776, its Supreme Court has invented the judicial doctrine of qualified immunity to shield public officials from liability, even when they violate people's constitutional rights, unless a court determines those rights were "clearly established”. That means that rather than fade sovereign immunity, the Americans have expanded its scope. In Kenya, the courts are fading the immunity granted to the Head of State.

The current jurisprudence, following the Justice Isaac Lenaola ruling in the Isaac Polo Aluochier case, is that when the president is sued in his personal capacity, the AG cannot enter an appearance for him. But it now appears that the court has opened the floodgates with yet another observation: “Any person may invoke the jurisdiction of this court by suing the president, whether in his personal or in his official capacity; whichever capacity he is sued may very well depend on the nature of the violation or threatened violation and will certainly depend on the circumstances of each particular case.”

 Those who have studied the British history will tell you that the King (or Queen) was both the sovereign and fount of justice – meaning that he was the source of law. The King was deemed to be appointed by God and that he was inviolable and thus could not be sued.

Secondly, the King, or Queen, was considered to be the dispenser of justice, through their appointees – and that is where we still borrow the tradition of the president appointing judges. So, therefore, the King could not appear before the same people he had appointed for it would appear ridiculous. Thus, in that monarchical thinking, the judges enjoyed the immunity thanks to their appointment by the King who held – and still holds – his position by “the grace of God.”

In Kenya, the same privileges and immunity enjoyed by the Executive, were extended to Parliament with the passing of the National Assembly (Powers and Privileges) Act, which in Section 3 said that “no civil or criminal proceedings may be instituted against any member for words spoken before or written in a report to the assembly, or to a committee, or by reason of any matter or thing brought by him therein by petition, bills, resolution, motion or otherwise.”

This was once tested when Martin Shikuku and Jean Marie Seroney were detained without trial after Shikuku said that Kanu is dead and Mr Seroney, then the temporary Speaker, agreed with him and told off a member who wanted Shikuku to substantiate. “You can’t substantiate the obvious,”  Mr Seroney ruled.

Also, Njonjo did not respect that particular clause and in October 1965, Wajir North MP Abdi Sirat Khalif claimed in Parliament that Mr Njonjo had threatened him outside the Chamber. “(He) told me outside the Chamber that he is going to see that I am victimised for the nonsensical speeches and questions, which are designed to embarrass him that I made in the Chamber.”

But Mr Njonjo later denied saying it was Mr Khalif who had threatened him by saying that, “if the government does not answer questions properly, in this House, something will be done…He told me he will get assistance from Somalia…and my only comment was that he should go to Somalia and get the assistance that he was speaking about and carry out his threat.”

Recently, the Kenyan Supreme Court also held that you cannot sue a judge and “that immunity of a judge can only be stripped in our realm, by proceedings through the Judicial Service Commission and not by a civil suit.

“Suing a judge or judicial officer for rendering an unfavourable decision rather than appeal or seek a review, was in our opinion, a misconception and a step in the wrong direction on the part of the petitioner. As a court, we are cognizant of the fact that at times, litigants may feel aggrieved by some of the decisions that judges and judicial officers make. But this is not in any way an exoneration of the petitioner in its actions.

To seek relief by apportioning an unwarranted attack on (judges), who were lawfully exercising their judicial function, was tantamount to harassment and intimidation of the judicial officers,” said the Supreme Court in the Bellevue Development case.

Perhaps legal scholars should tell us why you can sue the president and not sue a judge or MP?

[email protected] @johnkamau1