Judges of the Supreme Court of Kenya have overturned a determination by their counterparts in the High Court and the Court of Appeal to the effect that charges can be preferred against President Uhuru Kenyatta over his role in the clamor to amend the Constitution.
Judges of the High Court had ruled that “in taking initiatives to amend the constitution other than through the prescribed means in the constitution, the President failed to respect, uphold and safeguard the constitution and, to that extent, he has fallen short of the leadership and integrity threshold.”
“Court proceedings can 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,” they ruled.
When the matter was appealed at the Court of Appeal, a majority of the 7–judge-bench upheld the finding when it delivered its final orders on the matter.
But on Thursday, while making their final judgment on whether the Constitution Amendment Bill 2020, popularized under the Building Bridges Initiative (BBI) was constitutional, judges of the country’s apex court, by a unanimous decision, quashed the orders reiterating that the head of state enjoys immunity from any form of prosecution.
“Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done under the Constitution of Kenya 2010.” SCORK judges ruled in a judgment read by the court’s President Chief Justice Martha Koome.
They noted that their counterparts in lower courts erred in their decision, quoting Article 143(2) of the Kenyan Constitution, which 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 exercise of their powers under [the] Constitution.”
But even though, the courts handed President Kenyatta a reprieve, the judges upheld the decision by the High Court and the Court of Appeal that the President cannot initiate Constitutional amendments/ changes through the popular initiative under Article 257 of the Constitution.
While disallowing the appeal against findings by the lower courts that the President contravened the law by spearheading changes to the Constitution, the 7-judge bench, by a Majority, held that, “Article 257, in providing for the popular initiative amendment route was conceived and designed to serve as a citizen-driven process of amending the Constitution to the exclusion of the President.”
“The process of amending the Constitution through the Constitution of Kenya (Amendment) Bill, 2020 was initiated by the President rendering the subject amendment process unconstitutional as it was contrary to the provisions of Article 257 of the Constitution.” The judges ordered
But while dissenting, Justice Njoki Ndungu said that the President can initiate/move constitutional changes while exercising his constitutional functions under Articles 132 and 141 of the Constitution as well as under the power delegated to him as a democratically elected representative of the people under Article 1 of the Constitution. She equally found that State Organs may also move constitutional changes in exercise of the delegated authority given to them under Article 1 of the Constitution.
In addition, she held that a popular initiative is based on several steps laid out in Article 257, the success of which depends on the promoters’ ability to attain numerical thresholds at each stage.
And she was not alone. Justice Isaac Lenaola, whilst agreeing with the Majority that a popular initiative is a preserve of citizens to the exclusion of the President, held that the President did not initiate or promote the Constitution of Kenya (Amendment) Bill, 2020. In his view, the initiation of the subject Amendment Bill was done by the BBI National Secretariat.
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