Introduction

The doctrine of presidential immunity stands as a formidable shield, protecting the highest office in Kenya from civil litigation while in power. However, its application often raises intricate legal and constitutional questions, as exemplified in the recent High Court case of Stella Nekesa Omtatah v. President of the Republic of Kenya, Petition No. E514 of 2023. The petitioner’s claim—that the President and his predecessor ignored her proposals for educational reform—was met with the constitutional barricade of Article 143(2) of the Constitution of Kenya, 2010. The Court’s ruling reaffirmed the legal sanctity of presidential immunity, but it also invites deeper interrogation: To what extent should immunity insulate a sitting President from accountability?

Background of the Case

On December 13, 2023, Stella Nekesa Omtatah initiated a constitutional petition, alleging that her book, A Complete Stimulus Framework Proposal for the Successful Reformation of Africa’s (Kenya’s) Education System, contained transformative educational reforms that were ignored by both President William Samoei Ruto and former President Uhuru Muigai Kenyatta. She argued that this disregard constituted a violation of her fundamental rights under Articles 2(1), 10(1) and (2), 11(2)(a), 19(2), 28, and 33(a) of the Constitution. At its core, the case presented a unique challenge: Could a President’s failure to engage with a citizen’s ideas amount to a constitutional violation?

The Respondent’s Preliminary Objection

The President, through the Attorney General, countered the petition with a robust Preliminary Objection filed on March 4, 2023, asserting that:

1. The High Court lacked jurisdiction to entertain the suit, as Article 143(2) of the Constitution provides absolute immunity to a sitting President from civil proceedings regarding actions performed in an official capacity.
2. The doctrine of stare decisis compelled the Court to adhere to the Supreme Court’s precedent in Attorney General & 2 others v. David Ndii & 14 others (Petition No. 12 of 2021, Consolidated with Petitions Nos. 11 & 13 of 2021) [2022] KESC 8 (KLR), which firmly established the breadth of presidential immunity.

The Petitioner’s Submissions

In response, the petitioner advanced an argument that tested the limits of presidential accountability, contending that:

• Article 1 of the Constitution vests sovereignty in the people of Kenya, and by extension, an elected President cannot use constitutional immunity as a veil to evade responsibilities owed to the electorate.
• The failure to consider her proposals amounted to a breach of the right to access information and intellectual property protection under Article 40(5).
• The Attorney General’s response on behalf of the President indicated a cognizance of the claims, thereby warranting accountability.

Analysis and Determination

The Legal Framework Governing Presidential Immunity

The Court examined the scope of presidential immunity through the lens of established legal principles, particularly the threshold for preliminary objections set in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696. In doing so, it reaffirmed that a preliminary objection must be based on a pure point of law, capable of resolving the matter without delving into disputed facts, as underscored in Hassan Ali Joho & another v. Suleiman Said Shahbal & 2 others (2014) eKLR.

Article 143 of the Constitution provides:

1. Criminal proceedings cannot be instituted against a sitting President.
2. Civil proceedings are barred against a President in respect of acts performed in an official capacity.
3. This immunity does not extend to international crimes such as genocide, war crimes, or crimes against humanity.

The Supreme Court in Attorney General & 2 others v. Ndii & 79 others (2022) KESC 8 (KLR) further elaborated that presidential immunity:

• Shields the President from both civil and criminal liability during their tenure.
• Applies strictly to official acts, leaving room for personal liability in private matters.
• Allows for legal redress through the Attorney General in cases requiring immediate resolution.

The High Court, bound by this precedent, found that the President was protected from the suit, as the alleged inaction—failure to engage with the petitioner’s educational proposals—fell squarely within the realm of official presidential functions.

Implications and Conclusion

The Court’s decision to strike out the petition reaffirms the inviolability of presidential immunity in Kenya. While the ruling aligns with constitutional safeguards designed to protect the highest office from undue legal encumbrances, it also sparks an important conversation: Where does the line between presidential immunity and public accountability lie? Does the doctrine, in shielding the President from civil proceedings, inadvertently erode avenues for citizens to seek redress for executive inertia?

As Kenya’s constitutional democracy matures, the balance between immunity and accountability remains an evolving discourse. The challenge for future jurisprudence will be to ensure that presidential immunity does not become an impenetrable shield against legitimate claims that warrant attention.

References

• Kenya Law Reports: Attorney General & 2 others v. Ndii & 79 others (2022) KESC 8 (KLR)
• The Constitution of Kenya, 2010: National Council for Law Reporting
• Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696: Kenya Law
• Hassan Ali Joho & another v. Suleiman Said Shahbal & 2 others (2014) eKLR: Kenya Law