“What would my neighbour out in the village of Karaus-Kesogon, Trans Nzoia County, do were I the President and my dog bit his child?”
This was Court of Appeal Judge Patrick Kiage’s hypothetical question to lawyers for the President during a hearing on the BBI in 2021.
He was getting at the issue of presidential immunity. So can you indeed sue the President? The Supreme Court will finally put the thorny issue to bed this Thursday.
It was Isaac Polo Aluochier’s constitutional petition filed in January 2021 that opened the Pandora’s box on presidential immunity. Mr Aluochier asked the High Court to find that civil suits can be brought against a sitting President for actions not authorised by the Constitution.
Mr Aluochier, an activist who is also running for Migori senator, pegged his petition on Article 143 of the Constitution, arguing that just as the President was sued in 2017 after the General Election, he can similarly be sued for actions that do not relate to his presidential duties.
On May 13, 2021, a five-judge bench led by Justice Joel Ngugi delivered a unanimous decision, declaring the BBI unconstitutional, and declared that a sitting President can in fact be sued personally in civil proceedings if they violate the Constitution.
The judgment, which referred to the President as “Mr Uhuru Muigai Kenyatta” noted: “On the specific question of whether the President can be sued in his personal capacity during his tenure, our answer is in the affirmative because it is apparent from Article 143(3) that the President or any other person holding that office is only protected from such actions ‘in respect of anything done or not done in the exercise of their powers under this Constitution.”
Kenyans jested that reggae had been stopped and the efforts to amend the Constitution through the BBI were halted. However, for this particular tune, it has been a rather slow death.
Lawyer Waweru Gatonye filed an appeal and yet again the question of whether you can sue the President reared its head. Mr Gatonye made his submissions before a seven-judge bench comprising Court of Appeal President Justice Daniel Musinga and justices Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichael and Francis Tuiyott.
It was during his submissions that Justice Kiage posed the hypothetical scenario about the President’s dog biting a neighbour’s child. Mr Gatonye argued that the neighbour would have to seek the impeachment of the President in order to get a remedy.
But in the judgment, Justice Kiage disagreed with Mr Gatonye, stating that absolute presidential immunity only existed under the old Constitution. The Court of Appeal, therefore, held that the President can indeed be sued personally in civil proceedings if they act against the Constitution.
“The days of an unaccountable presidency are long gone and are of only historical significance as a lesson and a warning for the citizens of the country to be vigilant and to demand accountability from the persons to whom they entrust the responsibility of leadership,’’ Justice Kiage added.
Fast-forward to 2022 and the issue of presidential immunity is still one of the key ones to be determined this Thursday. A seven-judge bench led by Chief Justice Martha Koome will determine the fate of the BBI and ultimately the question of whether the President can be sued and perhaps then reggae will be stopped.