President Uhuru Kenyatta on Wednesday said he has immunity against prosecution in any criminal or civil court while in office.
While urging seven judges of the Court of Appeal to quash a declaration that he can be prosecuted while still in office, President Kenyatta said he enjoys the full protection of the law.
“No suit either criminal or civil can be filed against the President while in office,” Senior Counsel Mohammed Nyaoga, who is representing the Head of State, told the seven appellate judges Wednesday.
He quoted judicial decisions from established democracies such as the US, India, Nigeria and other countries that said a sitting president cannot be sued.
Mr Nyaoga, who is teaming with Senior Counsel Waweru Gatonye and Kimani Kiragu, said Articles 38 of the Constitution allow the President to participate in political activities given that he is the leader of a political party. He submitted a gazette notice issued in respect to the BBI, noting that the President was exercising his official duties.
He also said that under Article 133 of the Constitution, the President is mandated to undertake various roles in ensuring national unity.
“Although the petitioners, who filed the case challenging the BBI, accused President Kenyatta of undertaking the move to amend the Constitution, he cannot be punished legally since as a Kenyan he is allowed to privately and individually participate in political processes,” Mr Nyaoga said.
Mr Kiragu said there is no express provision in the law prohibiting the President from participating in the initiative to amend the Constitution.
“If it is not expressly prohibited then it is permitted,” Mr Kiragu told the appeals court president Daniel Musinga, sitting with six others.
He said it has not been shown how the President violated the law in supporting the popular initiative to amend the Constitution.
“The President can be involved in the amendment process,” Mr Gatonye said.
Judges Musinga, Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Kairu Gatembu, Fatuma Sichale and Francis Tuiyot were urged to set aside High Courts’ decision declaring that a sitting President can be prosecuted.
The judges heard President Kenyatta did not take part in the petition in the High Court and neither was he served to respond to the concerns raised.
Meanwhile, former Attorney-General Githu Muigai said the five judges of the High Court assumed the role of the Supreme Court by offering an advisory opinion.
Instead of confronting serious legal issues presented before them, they ended up granting reliefs not sought, Prof Muigai said.
Prof Muigai said the five judges departed from their core duty of interpreting the law by transforming themselves into a philosophical forum.
He, therefore, said the five-judge bench judgement is an “opinion”.
“Nine out of ten issues in the entire judgement is an advisory opinion. The judges sat as jurists and thinkers of the law,” the former AG said.
He said when the High Court sits as a constitutional court it is limited to interpreting the law and not delving into other matters and advancing their personal views.
Answering a question from Justice Patrick Kiage as to whether there was any process happening before the five judges, Mr Muigai, answered saying the process before the judges was the BBI.
While urging the appeals court to reverse the high court judgement he said the judges erred in stating IEBC could not transact its constitutional mandate as it had three commissioners and therefore it lacked quorum to transact its business.
“The five judges failed to appreciate earlier decisions on the issue of quorum where it had been ruled IEBC could transact business with only three commissioners,” Prof Muigai submitted.
He said IEBC is an independent body just like the Judiciary and takes no directions from any quarters while discharging its functions.
He said the judges erred in declaring that IEBC could not discharge its mandate due to limited commissioners.
He submitted IEBC is protected by the law and “the fact that there are vacancies does not render it unconstitutional.”
He said IEBC conducts its duties through the guidance of the law and “not implementation of resolutions.”
He submitted courts may create judicial anarchy if they depart from earlier decisions.
Prof Muigai said nothing turns on the number of judges sitting in a matter since the jurisprudence of a single judge matches those of five or even seven.
He said the higher number of judges in a matter only indicates the importance of the issues in question.
He said all matters which are taken to court must be hinged on the law.
He said political matters must be allowed to evolve politically while judicial matters must thrive on the jurisprudential tenets.
He said instead of the parties in the BBI petition drawing the issues for determination by the court, it is the Five Judges who drew up the issues to be answered in their judgement.
“This judgement cannot be allowed to stand as it interferes with many fundamental constitutional tenets. It is a recipe for chaos,” Prof Muigai
He said the judges said there are eternity clauses in the constitution that cannot be amended.
He said the judgement invites insurrections.
“The judges have therefore ruled that Kenyans cannot be trusted to make amendments with the constitution which they themselves promulgated,” Prof Muigai.
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Prof Muigai is appearing for IEBC in the appeal with lawyers Erick Gumbo and Moses Kipkogen.
Mr Kipkogen faulted the high court judgement saying the judges erred in declaring the IEBC did not forensically verify the 1milion signatures collected by the promoters of the BBI.
Mr Kipkogen said IEBC verified the signatures in the manner prescribed in the law.
” There is no law requiring IEBC to verify the signatures collected by the promoters of the constitutional amendments forensically by officers from the directorate of criminal investigations,” Mr Kipkogei stated.
He urged the judges to quash the declarations made by the five judges saying they erred in their findings.
He further said that the judges erred in saying there is no law guiding the referendum.
He said the referendum is guided by the Election Law.
“The word referendum has been mentioned 167 times in the Election rules. The judges erred in declaring there is no law on referendum,” Kipkogei.
Mr Gumbo and senior counsel Lucy Kabuni said IEBC carried out public participation in the manner acceptable by the law.
Mr Gumbo also said verification and collection of the 1 million signatures was done within the confines of law.
The hearing continues.