Much nonsense gets talked by people who are trying to protect their own interests. It would be hard to beat (on the constitutional front at least) the pronouncement of governors that “The best practice in jurisdiction that are devolved is that the head of both levels of government have immunity [from] civil and criminal proceedings while they are in office”.
This article will focus on the possibility of a state’s highest officers being prosecuted for crimes, not whether they can be sued in civil actions (like breach of a contract).
As commentators have observed, the President has protection against being prosecuted for any crime when in office. The same is not true of the Deputy President or governors.
WHAT HAPPENS ELSEWHERE?
I must admit the Constitution of Nigeria does give immunity to the President, Vice President and governors. The Nigerian Senate in 2016 tried to remove this in the case of “criminal proceedings connected to, related to or arising from economic and financial crimes”, but apparently this did not pass.
The best known systems with two levels of government, usually called federations, are the US, Canada, Australia, Germany, Malaysia, India and Brazil. Governors head American states and they can be prosecuted. Whether the President can be prosecuted is a surprisingly controversial issue.
Brazil, like the US, has a presidential system of government. The President can be charged as President Michel Temer was last year. However, this must be approved by a large majority of Parliament (but President Temer’s prosecution was not). For ordinary crimes, presidents cannot be arrested. State governors may be tried, though by a higher court than other people.
The other major federal countries have parliamentary systems of government. These have much less deferential attitudes towards their heads of government, the Prime Minister, and to the heads of government of the states or provinces that form their second tiers of government.
There is no legal obstacle to even the prime ministers of India, Canada, Australia or Malaysia being prosecuted for a crime. (Indeed there was some talk of prosecuting Justin Trudeau of Canada recently.) Clearly, the same is true of the heads of the lower level governments, premier or chief ministers, as they may be called.
The President of India (an almost entirely ceremonial post, with functions that must be carried out in accordance with the instructions of the Prime Minister), cannot be prosecuted for any criminal charge while in office. The same is true of state governors (a bit like the President but at the state level).
The Malaysian Prime Minister also has no immunity. But the head of state (usually a traditional ruler (sultan) of a state serving as national head of state in rotation) can be charged only in a special court and with the approval of the Attorney General. And the position is similar for the sultans when not taking a turn as national head of state. Until 1993, these rulers had greater immunity.
Readers may recall that a South African court held that it was irrational not to prosecute President Jacob Zuma.
In other words, the true head of government in parliamentary systems is usually not protected from being taken to court for a suspected crime just like any other person. It is not clear that the Prime Minister of Israel will not be prosecuted soon. In parliamentary systems, the ceremonial head of state often has some protection from criminal prosecutions (only while in office).
In presidential systems, it is more common for the head of government (who is also the head of state) to have considerable protection while in office.
BUT WHY DO PRESIDENTS HAVE SPECIAL PROTECTION?
In the mid-nineteenth century an English economist wrote a book in which he distinguished between what he called “the dignified parts” of the British constitution, “which excite and preserve the reverence of the population” and “the efficient parts”, “by which it, in fact, works.” The first part is the Queen and associated ceremonies and institutions, and the Prime Minister heads the second.
As a law student in England, I learned “The Queen can do no wrong”. This does not mean what it says literally: It means she cannot be held legally liable. It was explained on the basis that the courts were always conceived as the monarch’s courts, and how can the monarch be hauled before his or her own courts?
At that time, even the government (which was Her Majesty’s after all) was quite hard to sue, but this has greatly improved. But still you can’t sue the Queen and she cannot be prosecuted. Other European monarchs also have similar immunity.
The framers of the American constitution adopted the immunity rule for their presidentâ€•a democratic alternative to a monarch.
I am not sure why any president, whether purely (or largely) ceremonial or an executive president, should have any greater protection from prosecution than a prime minister. If the person doing the real job â€• being the head of government â€• in the parliamentary systems of the world can be prosecuted for crimes, whether committed in official or personal capacity, why cannot the person heading the “dignified parts” of government equally be liable?
BUT PRESIDENTS DON’T ESCAPE SCOT-FREE
One argument for assuming the US presidents cannot be prosecuted in the ordinary way is because there is a special procedure, impeachment: The House of Representatives can prosecute the president before the Senate, which may lead to removal. The problem about this is that it is a very political process. There is a degree of political division and viciousness in the US currently that makes some US commentators believe the idea that President Donald Trump could be prosecuted in the ordinary way is unacceptable. But the same factors also make it most unlikely that the House of Representatives would impeach him.
No such dispute can arise in Kenya: It is clear the President can be impeached and cannot be prosecuted. It is equally clear the Deputy President can be impeached and prosecuted. However, our Constitution makes it most likely that the President will have the majority support in Parliament — he is most unlikely to be impeached.
By the way, prime ministers can usually be removed by a political vote of no confidence (much more easily than a President can be impeached) and they can be prosecuted.
RISK OF HARASSMENT BY PROSECUTION?
There is surely a risk that the possibility of prosecution might be abused. Politically motivated prosecutions are not unknown, even in Kenya.
But if this is a serious risk, why is immunity reserved, in parliamentary systems, for the less political office holders, namely the monarchs and other heads of state?
In the UK, there is the possibility of private individuals bringing prosecutions. But such a prosecution can be taken over and stopped by the Attorney General. In Kenya, it is very hard for private prosecutions to be brought. Prosecutions are supposed to be by the Director of Public Prosecutions, who is supposed to be impartial â€• entirely non-political. This should make political prosecutions impossible.
As far as governors are concerned, not only does the Constitution not protect them from being prosecuted for alleged crimes, but also there seems no justification for contemplating for a moment a change in the law. Furthermore, most of their counterparts in other countries do not have any such privilege.
Real monarchies might perhaps be thought to be in a special position, though many would doubt it. They cannot even be impeached â€• though if a monarch was suspected of a serious crime, he or she would be under huge pressure to abdicate, or there might be a revolution.
But why does a monarch-like aura cling to ceremonial presidents?
There is something about executive presidents, like ours, that makes then appear a bit like monarchs. Is this not unhealthy in a modern democratic state? It also violates the idea of equality before the law. Arguably it is an argument against the whole executive presidential system.
By JILL COTTRELL GHAI