Presidential immunity: A critique of the Supreme Court’s interpretation of Article 143(2) of the Constitution of Kenya, 2010 in the BBI case

Abstract

This article critically examines the Supreme Court’s interpretation of Article 143(2) of the Constitution of Kenya 2010 in the context of presidential immunity in civil cases, focusing on the recent BBI case. The provision shields the President from civil proceedings during their tenure for actions taken in the exercise of constitutional powers. However, the Supreme Court’s assertion of absolute immunity challenges the foundational constitutional principle of the sovereignty of the people. By deeming the President untouchable in civil matters, the court risks undermining accountability and checks on executive power. The article delves into the guiding principles that should inform the court’s approach to presidential immunity, emphasizing the need to balance executive protection with the people’s right to seek redress. It argues for a nuanced interpretation that upholds accountability without hindering the president’s ability to execute constitutional duties. It then offers recommendations for a more balanced understanding of presidential immunity in civil cases, highlighting the importance of preserving democratic principles while acknowledging the unique challenges posed by legal actions against a sitting President.

 

Introduction

Kenya’s historical concentration of political and economic power, originating in colonial times, has led to a range of governance and economic issues, including an undemocratic system centered on an “imperial” presidency that wielded both political and economic authority, alongside an economic and developmental structure marked by regional, ethnic, gender, and individual disparities.1 These challenges prompted an extended endeavour and exploration for an effective governance system through constitutional scrutiny, ultimately resulting in the formulation of the 2010 Constitution.2 On 4th August 2010, the Kenyan citizenry approved a Constitution via a referendum and it was promulgated on 27th August 2010 by the President.3 This event has to a very great extent culminated a revolutionary step in the Kenyan history.4 JB Ojwang has observed that if this Constitution is properly implemented, it should lead to a revolutionary transformation of Kenya.5

However, Okoth Ogendo argues that it is in Africa that Constitutions are honoured in breach.6 This then calls on a question on who bears the role of enforcing the Constitution and who is its actual custodian?

Willy Mutunga argues that one of the most integral tenets of a transformative Constitution is one that has its own intra-textual modes of interpretation.7 The modes shall be assessed by the section that follows. This article critiques how the Supreme Court which is the ultimate guardian of the Constitution took an interpretation that defeats the purpose of the Constitution. It assesses the interpretation the court gave to Article 143(2) of the Constitution of Kenya 2010 and how the court ought to have interpreted it in furtherance of the doctrine of sovereignty of the people. The article also looks at the types of immunities and provides for the best form that should be adopted in civil cases. It shall start by assessing in brief some crucial rules and principles of constitutional interpretation. This paper starts by assessing the history of presidential immunity and what was the intention of Kenyans in enacting Article 143(2) of the Constitution.

History of presidential immunity in Kenya

The roots of presidential immunity in Kenya emanate from Britain where the queen as the head of state was above the law exempt from the rule of law. The maxim Rex non potest peccare to mean ‘the King can do no wrong’.8 The difference between the British and Kenyan position is that in Kenya the rule of law is applicable.

The repealed Constitution of Kenya had provisions almost similar to the Constitution of Kenya 2010 on presidential immunity. It provided that no civil proceeding was to be instituted against the President or a person holding the office of the President in relation to any action or omission in exercise of office function.9 The Bomas draft that was part of the process in which the attempts to achieve a transformative Constitution provides that in civil cases, for the President to be protected, then the matters must be in performing a duty related to the functions of that office.10 The harmonised draft also had similar provisions in that for the President to be protected, it had to in respect to anything done or not done in performance of their office duty.11 The people of Kenya in the final report of the Constitution of Kenya Review Commission stated clearly that the President should not be above the law.12 A majority asserted that it should be possible to prosecute him or her for offences with an emphasis while in office. The question is, does the Supreme Court have a greater power than the people. Though our jurisprudence recognises the primacy of judicial interpretation in giving meaning to constitutional texts, the courts should still take into consideration principles of a populist constitutional law. From the above drafts, it is clear that the intentions of Kenyans are that the President should be held liable in specific instances that will be mention later in this paper. The section that follows then assesses the rules of judicial interpretation in Kenya.

Assessing the rules for interpretation of the Constitution: Did the Supreme Court adopt the right approach?

The Constitution is a document sui generis that requires special rules of interpretation. Courts in constitutional supremacy jurisdictions have developed specific rules and principles for interpretation of the Constitution.14 This approach is in most cases referred to as the purposive approach.15 Article 259 provides that the interpretation of the Constitution should align with its goals, values, and principles; uphold the rule of law, human rights, and fundamental freedoms enshrined in the bill of rights, allow for legal evolution and foster good governance.16 Article 159 then provides the principles guiding the exercise of judicial authority.17 Both articles prescribe a purposive and value based approach towards constitutional interpretation.18 While the courts play a crucial role in interpretation, extending beyond a literal reading of the text, their authority is not without limits, as they, along with other state organs, are bound by constitutional principles.19 Dominique Rousseau considers the judge the master of the Constitution, who, however, is not free to produce whatever interpretation of the Constitution he or she chooses. Objectivity through the control of interpretation rules is called for, making the constitutional judge the unfree master of the Constitution.20 Breyer advocates for restricting the judicial power of the courts by implementing rules for constitutional interpretation and practicing judicial restraint.21

Constitutional interpretation is a process that employs generally applicable principles, procedures and strategies to read and apply the Constitution, starting with and centred on the written Constitution.22 It is a process of seeking to discover the content of the norms and apply them.23 Legal interpretation holds tangible implications in the actual lives and circumstances of individuals since legal language typically carries significant effects in the real world; thus, it should not be regarded as an inconsequential activity or mere wordplay.24 Mutakha Kangu cites Robert M Cover who observes that:

Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal interpretative acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by those organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.25

These effects of pain and death have more impact and severe implications in the field of constitutional interpretation.26 Mutakha Kangu notes that the Constitution should be interpreted differently because of three reasons.27 First, the Constitution is a statute sui generis, different from ordinary statutes as it is the expression of the will of the people, establishing a framework of government which grants and constrains governmental power.28 Justice Ringera asserted that a supreme Constitution is not an Act of Parliament and is not interpreted as one.29 Secondly, it establishes a society’s core values and principles which identify the ideals and aspirations of the nation. The spirit and the tenor of the Constitution must therefore preside and permeate the processes of judicial interpretation and judicial review,30 which is not a search for the intention of the legislature but an enforcement of constitutional values. Thirdly, it is drafted in broad language with room for growth and development to serve present and future generations.

Ringera J observed in the Njoya case that it should be portrayed as a dynamic entity possessing vitality and awareness, encapsulating essential values and principles that necessitate a broad, liberal, and purposive or teleological interpretation to uphold and give meaning to those values and principles.32 Furthermore, when the compatibility of any provision(s) in an Act of Parliament with the Constitution is challenged, the court is obligated to assess whether those provisions align with the values and principles enshrined in the Constitution.33

Mutunga CJ in the Gender Representation case underscored this fact when he noted that it was not necessary for the court to come up with other prescriptions on interpretation, other than those that are within the Constitution itself.34 The Constitution must be interpreted in a manner that assists and supports good governance. Good governance entails the ability of the people to check on their leaders and hold them accountable. Article 159(2) (e) explicitly requires the courts to exercise judicial authority in a purposive manner that protects and promotes the purpose and principles of the Constitution.35 The essence of this is that the Constitution must be interpreted in a manner that defends, encourages, assists and helps the flourishing of the purposes, values and principles of the Constitution.36 It is to do so in a manner that furthers or encourages the progress or existence of those purposes, values and principles.37

A purposive approach is geared towards identifying the purposes, core values and principles that the Constitution seeks to achieve and give effect to or protect and promote them.38 The process is aimed at discovering the purpose of the provision and not merely the meaning of the words used to communicate the purpose.39 The Kenya Constitution preamble notes the aspirations and the purposes of the Constitution to include the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.40 The preamble also recognises the sovereign and inalienable right of Kenyans to determine the form of governance of this country having participated fully in the making of this Constitution.41 In the South African case of S v Mhlungu and others, Sachs J in stating why the preamble should be taken seriously stated:

The Preamble in particular should not be dismissed as a mere aspirational and throat-clearing exercise of little interpretative value. It connects up, reinforces and underlies all of the text that follows. It helps to establish the basic design of the Constitution and indicate its fundamental purposes.42

Where there are two possible meanings and the interpreter has to make a choice, a purposive interpretation would settle for that meaning which, more than the other, furthers the objectives and purposes of the provision being interpreted.43 In order to achieve full benefits of a purposive interpretation, the South African Constitutional Court warned against an interpretation which is founded upon ‘technical rigidity’44 and urged for a holistic45 interpretation which avoids interpreting specific provisions in isolation from each other and leads to a conflict among the different provisions.46

In Dorothy N Muchungu the Court noted that the spirit of the Constitution embodies the ideals, aspirations and values of the people of Kenya and that the values illustrate the spirit of the Constitution.47 However, it warned that the spirit of the Constitution must be gathered from the language of the various provisions of the Constitution which must be read together as an integrated whole.48 Article 10 also provides for good governance as one of the most integral principles of the Constitution. Mutunga CJ after assessing Article 10 concluded that a purposive approach to interpretation must be followed by the Supreme Court and all other courts.49 The question is whether the Supreme Court really settle for the meaning that promotes sovereignty of the people and the ability of the people to hold the government accountable on matters relating to presidential immunity in civil matters? Certainly not. What then happens and the Supreme Court is the highest court in the land? This leaves the country with a wrong jurisprudence that binds all the lower courts. The review of the misinterpretation shall be reviewed by this article after a little discussion of the types of immunity available.

The last consideration that the court should take is looking at both the textual and the structural meaning of the text. The South African court in Matatiele Municipality and others v President of the Republic of South Africa & others, by Ngcobo J stated that:

The process of constitutional interpretation must therefore be context-sensitive. In construing the provisions of the Constitution it is not sufficient to focus only on the ordinary or textual meaning of the phrase. The proper approach to constitutional interpretation involves a combination of textual approach and structural approach. Any construction of a provision in a constitution must be consistent with the structure or scheme of the Constitution. This provides the context within which a provision in the Constitution must be construed.50

 

Did the Supreme Court really take into consideration the structural approach? This article shall assess it in detail.

Types of presidential immunity in Kenya

Legal immunity typically manifests in two ways: first, immunity from liability which shields officials not from the initiation of proceedings but from personal accountability after proceedings involving enforcement.51 Secondly, immunity from proceedings represents a broader form of immunity that challenges the court’s or tribunal’s authority to adjudicate a particular matter because the party subject to the proceedings is entitled to immunity, precluding the initiation of both proceedings and liability.52

There is sovereign immunity which is the immunity enjoyed by a sovereign state or the heads of states or their representatives who have diplomatic immunity and entails that the holders of such immunity cannot be subjected to the jurisdiction of certain courts, either their own local or foreign courts.53 In contrast, functional immunity is conferred on state or public officers not to be tried or made liable for acts done (usually in good faith) in discharge of their official functions.54 The former emanates from the tradition that a sovereign cannot be subjected to its own courts without its consent, while the latter derives from the need to let persons lawfully performing their functions not be subjected to unnecessary suits.

In addition, there is absolute and qualified immunity. Absolute immunity (whether functional or sovereign, jurisdictional or enforcement immunity) has no limitations as to its application while qualified immunity usually has limitations like the extent of actions and whether related to the official function or whether done lawfully and in good faith or out of malice or whether it was a discretional act or not.55

The Supreme Court’s misinterpretation

The Kenyan High Court in Trusted Society of Human Rights and others v Attorney-General and others has already acknowledged this authority of the courts under the new Constitution, noting that the Courts have an interpretative role.56

The 2010 Constitution of Kenya is founded on two major principles:57 the sovereignty of the people58 and the supremacy of the Constitution.59 The Constitution is the supreme law and it binds all persons and state organs.60 The High Court in the Njoya case observed that the Constitution of Kenya which is the supreme law of this country is the will of the people or the mandate they give to indicate the manner in which they ought to be governed.61 The High Court in Patrick Onyango case clarified that sovereignty of the people overrides supremacy of the Constitution by stating thus:

 

The reason for this is that constituent power cannot be fettered by an existing Constitution in that in the hierarchy of power, the people come first and it is the people who gave rise to a Constitution. They are the supreme law givers. The Constitution though supreme is subordinate to the people.62

Justice Ringera posits that the Constitution is supreme because it is made by they in whom the sovereign power is reposed, the people themselves.63 Inherent in the supremacy of the Constitution (or the concept of constitutionalism) is the notion of limited governmental power.64

The issue of whether a President can be sued in his own personal capacity was raised by Isaac Aluochier.65 Article 143(2) states that civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.66 Previously, the position on presidential immunity was guided by the case of Republic v Chief Justice of Kenya and 6 others and Nyarotho vs. Attorney General and 3 others where the High Court of Kenya held that a sitting President can be sued in his official capacity for constitutional and legal transgressions.67

Kenya has had three post 2010 Constitution Presidents, Mwai Kibaki who ushered the Constitution by promulgating it in 2010 followed by Uhuru Kenyatta and now William Ruto. There is no evidence of any proceedings of civil nature having been instituted against Hon. Mwai Kibaki during his tenure as President. There is, however, evidence of civil proceedings instituted against or by him prior to and after his tenure.68 The rule is clear that absence of evidence is not evidence of absence.69

The Supreme Court stated that the two superior courts below, particularly the prevailing view in the Court of Appeal, relied on the wording “…in the exercise of their powers under this Constitution” in Article 143(2) to underscore that the President loses immunity when exercising powers not conferred by the Constitution.70 They stated that a literal reading supports this interpretation while a purposive analysis of the phrase produces an alternative outcome and considering the rationale and underlying concept of Article 143(2) suggests that the immunity pertains to the President’s official duties rather than personal legal actions. The greatest question is whether the Supreme Court took a keen look on the purpose of the Constitution? The Court did not even take into consideration practical instances in which the president may be sued.

The court acknowledged that the President’s role in carrying out their functions includes interpreting the Constitution to determine whether it grants them the authority for specific tasks. Following such interpretation, the President shall act or refrains from it based on the belief that either the power exists or does not.71 Consequently, if legal proceedings were to be initiated against the President post an interpretation deemed incorrect, such proceedings would fall under the immunity specified in Article 143(2), as they would be part of the President’s functional duties. Notably, there is no provision that mandates or permits the President to seek a judicial advisory opinion before executing their duties or ascertaining their authority for any official act; furthermore, such a practice would generally compromise the separation of powers. The question I pose is what then happens if the President slaps a normal citizen? Does that require the President to make an interpretation towards respect of the freedom from torture and a degrading treatment? Certainly not. There has to be a balance between impunity and accountability gap.

The court in trying to state on how the gap can be covered stated that it is essential to emphasize that the Constitution outlines mechanisms to ensure the President and the Executive, in general, are subject to political accountability, specifying that the President can be subject to impeachment under Article 145 of the Constitution. The criteria for impeachment, as enumerated in Article 145(1) of the Constitution, encompass gross violations of the Constitution or any law, engagement in criminal activities under national or international law, or engaging in gross misconduct. A question then arises on what is the practicality or the number of times that there has been an effort to impeach the President in light of the number of times the President has committed civil offences outside the ambit of his constitutional duty?

The court stated that with respect to legal accountability, the protection of the President from legal proceedings under Article 143(2) does not mean that a President’s actions or omissions cannot be challenged in court.72 Anybody or party aggrieved by the President’s actions or failures can initiate proceedings against the Attorney General who by virtue of being the legal representative of the government in legal proceedings also represents the President, who is the head of government. The immunity on the other hand offers protection that shields the President from civil suits being filed against them in their personal capacity.

This article offers a hypothetical situation. If the President has from time to time been subjecting his wife to torture or has been taking part in bigamy and the wife wants to institute a divorce proceeding against the President, will the wife institute the proceeding through the Attorney General?

The Supreme Court relied on the Constitution of Kenya Review Commission Final Report which records which stated that the President should receive protection from any legal proceedings that may be instituted during his tenure of office.73 But the real question is in the efforts of the court to do a purposive interpretation, did the take into consideration the holistic and structural mode of interpretation? Did they even consider the desire of Kenyans to bring to an end imperial Presidency and have the people as the sovereign?

The Supreme Court at last held that civil proceedings cannot be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution.74 Such proceedings can be instituted against the President vide the Attorney General. A wrong jurisprudence has been left for Kenyans. What will the wife of a president seeking for a divorce due to constant violations of her rights do? What is the recourse for her in law? Does this mean that she will have to wait for the tenure of office of the President to end? Does this then not create an imperial presidency? This is because the suing the President vide the Attorney General only applies to matters that are public in nature.75

Lady Justice Njoki Ndungu then comes in with an absolutist approach and states that the President cannot be held accountable even after leaving office and she states that the only remedy for the President’s constitutional violation is impeachment.76 This puts the President above the law and takes us back to the imperial presidency era.

In the Nixon case, the U.S. Supreme Court defended absolute immunity for the President based on their distinct constitutional position and functions, as well as the principle of separation of powers, asserting that such immunity was essential to safeguard the President’s official judgment and shield them from distractions in performing their duties.77 The Supreme Court adopted the same reasoning even for civil cases78 without taking into consideration the difference in democratic achievements between Kenya and the United States of America.

What then can be done? The following part offers recommendations for construing Article 143(2) of the Constitution of Kenya.

Recommendations on presidential immunity in civil cases

According to professor Akande, a President’s immunity falls under the category of immunity called functional immunity (Ratio materiae) which applies to acts performed in an official capacity.79 If this is the right position then why did the court take a different approach? This paper suggests an adoption of the Court of Appeal majority decision, led by Justices Musinga, Nambuye, Okwengu, Kiage, Gatembu, and Sichale, affirming the High Court’s determination that the President can be legally challenged in his personal capacity while in office if his actions or inactions contravene the Constitution, emphasizing that Article 143(2) shields the President only in relation to activities carried out within the scope of their constitutional powers.80 This should apply to civil matters that are lucid and do not require the President’s interpretation as to whether they fall within the ambits of his office duties. Operational independence is only key in matters involving the official duties of the President and not in civil matters that do not relate to the office like family issues.

Though it is important to note that civil immunity not only protects the President from private pursuits by citizens through litigation and the predominantly adversarial court process in Kenya but also prevents the President from facing court appearances, testimonies, cross-examinations, and potential execution proceedings in the event of civil liability.81 Such consequences, including the possibility of being committed to civil jail as a means of execution, are both undesirable and distracting. To efficiently carry out official duties, the President should be as accessible as feasible. Article 24 of the Constitution is clear that the court need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others.82 The President cannot enjoy a right in prejudice of the rights of his wife.

In the United States, previously before the Nixon case, presidential immunity was the subject of judicial decisions. In the case of Halperin v. Kissinger, the President alongside other Executive branch officials had been taken to task over illegal wiretapping.83 The Court of Appeals for the District of Columbia Circuit held that the President was entitled only to qualified immunity. The Court in rejecting the notion of absolute immunity concluded that it was not justified on public policy grounds. The court held that limited immunity was intended to check executive behaviour that threatened constitutional rights and would not hamper effective government. Worthy of note was that the court stated that the protection offered by qualified immunity took into account the special time demands whereby, in times of emergency, the President is entitled to consult fewer sources and expend less effort inquiring into the circumstances of a problem, which makes it difficult to impeach a President’s good faith immunity. The court concluded that the doctrine of separation of powers did not require absolute presidential immunity.84

Justice Ibrahim in his dissenting opinion in the BBI case at the Supreme Court got it right when he stated the President is established under the Constitution to serve the people and cannot be regarded as exempt from legal accountability.85 The immunity provision should be interpreted in light of the historical context of an imperial presidency that, through constitutional amendments, centralized power, and it cannot be presumed that the Constitution’s framers intended the President to operate beyond legal scrutiny and unchecked authority.

This paper calls for the same approach in that if a President commits an offence that is not related to his office function and does not require any interpretation as to whether it is an office function or not, in matters such as family issues, then the President should be held liable in person in a court of law.

Conclusion

The court’s assertion of absolute immunity challenges the foundational constitutional principle of the sovereignty of the people, potentially undermining accountability and checks on executive power. We cannot allow the courts to overrule the intention and the ardent desire of Kenyans. This will elevate judicial supremacy above the sovereignty of the people which is the doctrine that permeates and pervades the whole Constitution. The misinterpretation, as highlighted in the critique, raises concerns about the potential perpetuation of an imperial presidency, contrary to the transformative aspirations of the Constitution.