Supreme Court verdict: Can the president be sued?
By Moses Ngahu
What would happen if a person, an animal or an item in a president's household causes harm to you? Are you justified by the law to sue the head of state? These are some of the questions the Court of Appeal Judge Patrick Kiage posed to President Uhuru Kenyatta's lawyer during the Building Bridges Initiative (BBI) hearing back in 2021.
The discussion was part of the issues raised in challenging presidential immunity. For those following the BBI proceeding, the question of whether one can sue the President was answered today, Thursday, march 31, 2022, by the Supreme Court.
The question of whether a sitting president can be sued in civil courts for violating the constitution and the law was revisited by the High Court recently when the court was passing judgement in ‘David Ndii & others v Attorney General & others' also known as the BBI case.
Before today’s ruling, it was hard to exactly know if a sitting president has absolute immunity from any kind of litigation. While some may argue that he does enjoy immunity from prosecution for his acts, others argue that the immunity is not absolute in civil prosecution.
[caption id="attachment_15865" align="alignnone" width="968"]
Supreme Court judges at a past session. [Photo: Courtesy][/caption]First, one must understand when and how the president can be sued. According to Article 143 of the Kenyan constitution, the president is shielded from criminal and civil proceedings while still in office with respect to anything done or not done as he exercises his powers.
“Even after the judges ruled that the president cannot be sued, such a case can be instituted personally through the Attorney General. In addition, they said immunity does not fully shield the president from prosecution, especially in civil or constitutional cases which challenge the power of the president,” Justice George Dulu, William Musyoka and James Wakiaga said.
According to Justice Smoking Wanjala, the president cannot be sued in his private capacity during his tenure but can be sued once he retires.
Justice Njoki Ndung'u said the president has a unique position in the Kenyan Constitution and has the responsibility to promote and enhance unity. Justice Isaac Lenaola said the president cannot be sued in a personal capacity. One can only do so through the Attorney General.
In 2021, Isaac Polo Aluochier was the man behind the petition filed in January 2021 which opened the Paradox of immunity. Aluochier had requested the High Court to find civil suits that can be brought against a sitting president for actions not authorised by the constitution.
A five-judge bench led by Justice Joel Ngugi ruled that a sitting president can be sued personally in civil proceedings if they are found to have violated the constitution.
Katiba Institute, at the time, had moved to court suing President Kenyatta for failing to confirm 40 judges nominated by the judiciary.
Supreme Court judges at a past session. [Photo: Courtesy][/caption]First, one must understand when and how the president can be sued. According to Article 143 of the Kenyan constitution, the president is shielded from criminal and civil proceedings while still in office with respect to anything done or not done as he exercises his powers.
“Even after the judges ruled that the president cannot be sued, such a case can be instituted personally through the Attorney General. In addition, they said immunity does not fully shield the president from prosecution, especially in civil or constitutional cases which challenge the power of the president,” Justice George Dulu, William Musyoka and James Wakiaga said.
According to Justice Smoking Wanjala, the president cannot be sued in his private capacity during his tenure but can be sued once he retires.
Justice Njoki Ndung'u said the president has a unique position in the Kenyan Constitution and has the responsibility to promote and enhance unity. Justice Isaac Lenaola said the president cannot be sued in a personal capacity. One can only do so through the Attorney General.
In 2021, Isaac Polo Aluochier was the man behind the petition filed in January 2021 which opened the Paradox of immunity. Aluochier had requested the High Court to find civil suits that can be brought against a sitting president for actions not authorised by the constitution.
A five-judge bench led by Justice Joel Ngugi ruled that a sitting president can be sued personally in civil proceedings if they are found to have violated the constitution.
Katiba Institute, at the time, had moved to court suing President Kenyatta for failing to confirm 40 judges nominated by the judiciary. What's Your Reaction?
