Can the President's wife sue him?

Supposing the President's wife sought to divorce him in Kenyan courts, will the judges decline jurisdiction and chain her to a broken marriage until he leaves office?

An alternative question: Can a child sired by Muslim man out of wedlock inherit his estate both questions or their permutations have been litigated in Kenya’s Supreme Court before.

The first addresses presidential immunity from civil proceedings under Article 143(4) of the Constitution of Kenya and whether it is absolute. The second discusses whether Article 24 (4) of the Constitution that guides Muslim succession should be regarded as self-sufficient or must be tested against other articles of the Constitution, especially Articles 27 and 53 that deal with equal treatment and non-discrimination, when implementing Muslim personal law in Kenya.

When the question of presidential immunity was canvassed, during the Building Bridges Initiative (BBI) saga in 2021, the High Court and Court of Appeal held that presidential immunity does not cover acts or omissions outside the President’s constitutional duties.

The Supreme Court overturned these judgments and conferred blanket immunity from all civil proceedings.

In the preceding High Court proceedings, the Attorney General (AG) concurred that a president could be subjected to civil proceedings but under the AG as his substituted respondent.

The absurdity of the AG replacing an errant civil servant as a defendant in a civil suit per the Government Proceedings Act was rejected by the Court of Appeal at Mombasa in 2017 in the matter of Aharub Ebrahim Khatir v Nelson Marwa & another [2019] when it was held that it would be a violation of the right to a fair trial and impossible to prosecute a defamation suit if the accused person is not respondent in their own name.

Said the Court of Appeal in part: “If the only way in which the appellant was to be able to ventilate his claim in a court of law was through the 1st defendant… he should not be removed from the seat of justice....”

In 2021, the Supreme Court rejected the foregoing jurisprudence and removed the President from the seat of justice, literally and absolutely.

Typically, whenever proceedings are attempted against the Head of State, the Attorney General applies to strike out the President’s name citing Article 143 (4) as indemnity.

This philosophy is under scrutiny again after the Supreme Court declared that when it comes to Muslim personal law, the exceptions to the Bill of Rights in Article 24(4) must be subjected to a holistic and purposive test against articles 23, 53 that confer equal rights for all children.

In the BBI case, the Supreme Court restricted its interpretation of presidential immunity to a constricted reading of Article 143(4) and ignored Articles 10 and Chapter 6 of the Constitution, Article 50, 53 that prescribe presidential conduct and good governance.

In the Muslim case, the court held that despite Article 32, which guarantees Muslim religious worship and Article 24(4), though exclusive to Muslims, must be read with the rest of the Constitution to secure equal rights for children born against Islamic norms.

A legitimate question follows: Whether a court will reject a divorce petition against a president because the latter is indemnified from civil proceedings without violating the aggrieved spouse’s constitutional rights.

The Supreme Court’s inconsistent jurisprudence has not developed the law in all directions to cover all scenarios by not adopting the holistic and purposive philosophy in all instances. In the BBI case, the top court proceeded from the supposition that there are only two types of proceedings permissible in Kenya: Criminal and civil.

But a purposive, contextual and holistic construction of the entire constitution yields the inescapable conclusion that other proceedings that are neither criminal nor civil-including the so called sui generis proceedings that do not end in criminal conviction/acquittal or result in civil sanctions are also contemplated.

Included in this category are constitutional proceedings that result in declaratory orders contemplated, per Article 258 and in presidential elections petitions where an incumbent president, as a candidate, is named as respondent.

It is not true that the president is totally immune from all civil proceedings, even from an ordinary interpretation of Article 143 (4) because the supreme law neither deifies the President nor sacralises this office.

Any interpretation that reintroduces a rebaptised imperial monarch from the repealed constitution is heretical and bad law. The purpose of construction and reinterpretation of the law is to settle the law to cover previously, unforeseen scenarios.

In the BBI case, the top court ignored comparative jurisprudence on how presidential immunity is construed.

Can the Supreme Court declare today that, in the name of advancing the rule of law and good governance there is no judicial remedy if a president refuses to pay his workers or declines to pay his taxes?