A Kenyan Sitting President Can Be Sued – High Court

A sitting President of Kenya can be sued in a court of law for his acts or commissions according to a ruling by the High Court on Thursday, melting down the long-held tradition that a President is immune to any prosecution while in office.

The bench of three judges, however, ruled that the suing of the President cannot be instituted personally but has to be done through the office of the Attorney General. This might prove futile given that the AG is always on the side of the government.

“Although there is immunity for the President from prosecution, the same does not bar prosecution of civil or constitutional cases which challenge the power of the president,” Justices George Dulu, William Musyoka, and James Wakiaga said.

It is, however, not clear how this ruling will conflict with Article 143 of the Constitution of Kenya. Article 143 (1) says that “Criminal proceedings shall not be instituted or continued in any court against the President or person performing the functions of that office, during their tenure in office.”

Article 143 (2) says “Civil proceedings shall not be instituted in any court against the President or any person performing functions of that office during the tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.”

Katiba Institute has sued President Uhuru Kenyatta personally for refusing to swear in 40 judges as recommended by Judicial Service Commission (JSC) in 2019. The judges say the move was not fatal and the organization should be given a chance to argue its case.

“To that extent, it can be said that there was a misjoinder of the president he ought not to have been named as or made a party in this proceedings,” the court ruled.

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