President Uhuru Can Be Sued – Activist Aluochier Argues in BBI Appeal Hearing

President Uhuru Kenyatta does not have ultimate immunity and can be sued while in office, argued human rights campaigner Isaac Aluochier.

According to Aluochier, the president has limited immunity, which means he can be sued in civil court.

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

He used the example of a traffic violation, claiming that because the president enjoys driving and commits a traffic violation, he is immune from prosecution.

“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 claimed that the Kenyan people, not the president or Chief Justice Martha Koome, are the real bosses under the constitution.

“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 went on to say that one can file a lawsuit against the president if the subject is unrelated to the president’s duties.

Read: DP Ruto Accuses Raila of Using BBI To Further Personal Agenda

According to Aluochier, the president was acting beyond the scope of his office when he engaged in issuing Kenya Gazette notices and forming the BBI steering committee.

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

The president, it was claimed, was forming a public commission to explore changing the constitution because he had acted outside the scope of his authority.

Aluochier also chastised the president for starting the BBI process, claiming that the president is not entitled to do so by the constitution.

He further pointed out that any public servant or state authority can propose a constitutional amendment as long as they do not use public finances.

“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 told the 7-judge bench.

Aluochier argued that there is a difference between fundamental structure ideology and basic structure in the constitution when it comes to basic structure.

He went on to say that independent commissions must only conduct themselves in conformity with the Constitution since it is the sovereign power that the people have given them.