Piece by: ANNETTE WAMBULWA

19 January 2022

Human rights activist Isaac Aluochier has maintained that President Uhuru Kenyatta does not have absolute immunity and can be sued while in office.

Aluochier says the president has limited immunity meaning he can be sued in civil proceedings.

“The President does not have absolute immunity. He has limited immunity with respect to civil proceedings,” he said.

He gave an example of a traffic offence saying since the president loves driving himself and commits a traffic offence then he has immunity from being charged.

“Every once in a while we see the President driving vehicles, he could commit a minor traffic offence like anybody else. But because of that particular criminal offence or traffic offence, the case may do not fall under Article 143 covered by an international treaty. You can't sue him,” he said.

He argues that in the constitution the people of Kenya are sovereign and are the real bosses, not the president or Chief Justice Martha Koome.

“We are boss. We have limited the exercise of our sovereignty to only in accordance with this Constitution, and so we must be faithful to this Constitution,” he said.

He further avers that you can bring a suit against the president if it touches on a matter outside the functions of the presidential office.

Aluochier says when the president was busy issuing out Kenya Gazette notices and establishing the BBI steering committee, he was acting outside the functions of the office.

“There is nowhere the Constitution authorizes him(Kenyatta) to engage in constitutional change matters outside Article 256,” he said.

It was submitted that the president was establishing a public body to consider the change of constitution because he had acted outside the functions of his office.

Aluochier has also faulted the president for initiating the BBI process saying the constitution has nowhere authorized the head of state to initiate.

It is his further argument that any public servant or state officer can initiate an amendment of the constitution so long as they don’t use public funds.

“Don't use public facilities and so when the President seeks reelection as President, he's doing it properly, he doesn't use state funds. He uses his own money or his political parties money and things like that. He doesn't go to the National Treasury,” he says.

On the issue of basic structure, Aluochier says there is a distinction between basic structure doctrine and basic structure in the constitution.

He added that Independent commissions must conduct their affairs only in accordance with this Constitution because that is the sovereign power that the people have delegated to them.