Assault on presidential immunity threatens stability

The road to Kenya’s August 9 elections is mined by a rancorous public debate on corruption and the immunity of President Uhuru Kenyatta once he exits office. 

Western democracies have witnessed a trend to roll back the idea of absolute immunity to contain the surge of populism.

“There’s no such thing as ‘absolute immunity’ for former presidents”, wrote the American legal scholar, Catherine J. Ross on January 17, 2022.

Former President Donald Trump is facing numerous civil lawsuits seeking monetary damages for his role in fomenting the armed invasion of the Capitol on January 6, 2021.

In Africa, the surge of liberalism in the 1990s inspired constitutional reforms based on the idea that no individual, regardless of his status in society, is above the law.

But the removal of immunity provisions, widely seen as a way of limiting impunity and presidential absolutism, is taking a heavy toll on former presidents and the stability of fragile democracies.

On June 29, 2021, South Africa’s Constitutional Court sentenced former President Jacob Zuma, against a flurry of investigations on ‘cronyism and state capture’, to 15 months imprisonment!

Bitter fall-out

Propelling the push for the removal of presidential immunity in Kenya is a bitter and long-drawn falling-out between Kenyatta and his deputy, William Ruto, which played out during the presidential running mates debate on August 9.

In emerging democracies, the immunity of sitting and former presidents is a cornerstone of stability during transitions.

At the height of Kenya’s imperial presidency under the Kenyatta and Moi regimes, it was unimaginable for the court to indict the President.

Thus, the presidential absolutism under Africa’s one-party state had parallels with the age of monarchies in Europe.

‘L'état, c'est moi’ (the state, it is I), the French Monarch, Louis XIV, famously declared.

The King could “do no wrong” and the doctrine of immunity against prosecution of heads of state was totally irrelevant.

Kenya’s emerging democracy is inspired by the values of the liberal revolutions in America (1775-1783) and France (1789-1799), which birthed the idea of an accountable government.

It was only after 1973 that the Supreme Court first upheld that the President —but not his staff — was absolutely immune from civil actions.

The logic was stabilising the effect of the “unique position in the constitutional scheme” that the President occupies.

Stability was the missing link in Samuel Huntington’s ‘Third Wave of Democratisation’ after 1989.

After the ruling Kanu lost to the opposition in 2002, President Mwai Kibaki wisely chose not to go after Daniel Moi for the sake of national unity and stability.

But going after Moi’s henchmen was one of the main underlying causes of the 2008 post-election violence, especially in the Rift Valley.

But the clamour for the removal of presidential immunity has grown bolder and louder after the promulgation of the 2010 Constitution.

President exposed

As the president tasked with dismantling the imperial presidency and implementing the 2010 Constitution, under-girded by Baron Montesquieu’s doctrine of “Separation of Powers,” Kenyatta failed to strike a sustainable balance between the separate and independent powers of the three arms of government — the Executive, the Legislature and the Judiciary — which have been embroiled in supremacy wars.

The new constitution provided for the immunity of the president internally.

However, it left the president exposed to possible prosecution by external jurisdictions. 

As such, while the International Criminal Court (ICC) and its Western financiers won the presidency for Kenyatta, once in office, he became the first head of state to appear before the Hague-based Court in October 2014 on charges of crimes against humanity for his alleged role in the 2007-08 post-election violence.

Now in its twilight, the Jubilee government is yet to change this law to shield Kenya’s sitting and former presidents from international judicial activism. 

Kenyatta’s adversaries in civil society and the Jubilee Party used the Building Bridges Initiative (BBI) to try to take away his immunity and go after him while still in office.

The High Court judgment on the BBI case (‘David Ndii & others v Attorney General & others’), upheld by the Court of Appeal, ruled that the President can be sued in his personal capacity.

This was only reversed by the Supreme Court of Kenya that, on March 31, 2022, overturned the High Court and Court of Appeal judgements, asserting that the president enjoys absolute immunity and no criminal or civil proceedings can be instituted against him.

But the critics of Kenyatta and his family have been systematically laying the ground for a possible post-presidency prosecution.

In his lengthy piece published by The Elephant, Ndii, a Kenya Kwanza strategist, threw the first salvo against the “Crony Capitalism and State Capture: The Kenyatta Family Story” (July 7, 2018).

In line with this, during the launch of the Kenya Kwanza manifesto on June 30, 2022, Ruto vowed to establish “within 30 days, a quasi-judicial public inquiry to establish the extent of cronyism and state capture in the nation and make recommendations” and to reverse Kenyatta’s policies.

This, is the clearest indication so far that a Ruto government will go after Kenyatta and his administration after leaving office. 

During the presidential running mates debate on July 19, Ruto’s running mate, Rigathi Gachagua, accused the President and his family of ‘conflict of interest’ and ‘State capture’, declaring that this is the real corruption that Kenya needs to deal with.

Even with the daggers out, the important lesson that Kenya’s power elite needs to take to heart is that the guarantee of immunity for the sitting and former presidents is central to peaceful transitions.

Peter Kagwanja is CEO, Africa Policy Institute and Adjunct Scholar at the University of Nairobi and the National Defence University