NAIROBI, Kenya Jan 19 – President Uhuru Kenyatta has been faulted for acting beyond his mandate by initiating a constitutional amendment process through the Building Bridges Initiative (BBI).
In his submission before the Supreme Court, lawyer Isaac Aluochier who is the ninetieth respondent in the BBI appeal suit noted that the process of amending the Constitution is a preserve of the people and is clearly stipulated in the Constitution.
“We have no higher law than this Constitution. Therefore, we have to abide by it. If our Constitution is supreme then it is supreme and no law can purport to construe it and its provisions,” he said.
Aluochier put a spirited fight on the issue of immunity noting that the Constitution does not give the President blanket immunity and that the holder of the office can be sued if he acts outside his mandate as provided for in the Constitution.
“We cannot have immunity for impunity, no. We want a President who lawfully abides to our Constitution. We cannot have the President doing anything he feels like as asked by his legal counsel,” he said.
The President’s legal counsel who submitted their submissions first however, urged the Supreme Court to protect the dignity of the President by guaranteeing his immunity from any civil or criminal prosecution.
Lawyer Gatonye Waweru who appeared on behalf of the President pleaded with the Chief Justice Martha Koome-led bench to rule with finality that the Head of State cannot be sued while still in office.
“As long as he is acting in his capacity as President, he cannot be sued during the time that he is the President. The provision contained in the Constitution has not created a monster because there are provisions for questioning the decisions of the President that affect any citizen in the country,” he said.
Waweru emphasised that the President’s immunity as provided for in the Constitution is a functional necessity which aids the holder of the office to perform their duties well.
“Like the American Supreme Court said, if the President is involved in gross violation of the laws of the State there is that possibility of initiating impeachment proceedings against the President. And so I will stress again that this immunity does not create a monster and is totally warranted in law to enable the President to effectively carry out his duties,” he said.
The High Court and the Court of Appeal in their ruling in 2021 stated that the President can be sued for his acts or omissions while still in office.
