Legal experts have unpacked Thursday ruling by a five-judge bench that declared the BBI process illegal and unconstitutional, disclosing how the judgement exposes President Uhuru Kenyatta to possible impeachment.
The High Court ruling directly indicted the head of state for falling short of the leadership and integrity law, a decision that could make him vulnerable for possible impeachment.
Further complicating issues for the President who has political enemies and friends in equal measure at bothe the Senate and the National Assembly is the declaration by a five-judge bench that the President can be sued in his personal capacity.
Legal experts opine that the declaration could see a plethora of cases brought to court with Uhuru Kenyatta the individual citizen rather than the president hounded to court, away from the trappings of power that come with his position.
Politicians and lawyers agreed unless the judgment by the High Court is successfully stayed by the Court of Appeal, the President’s tenure could be halted by an impeachment based on Thursday’s events.
Lawyer Danstan Omari opined that “The President is now very vulnerable to impeachment because the court did not allege that the President had violated the Constitution but indicted him, he is in a very precarious position”.
The Constitution in Article 145(1) provides that the President can be impeached on gross violation of the Constitution or any other law, gross misconduct and committing crime under international or national law.
A member of the National Assembly, supported by at least a third of all the members, may move a motion for the impeachment of the President.
The motion will proceed to the Senate should it be approved by two-thirds of members.
“If at least two-thirds of all the members of the Senate vote to uphold any impeachment charge, the President shall cease to hold office,” reads the Constitution.
However, the handshake brothers have a commanding control of both houses, making it almost impossible for this to be achived unless the polical landscape shifts drastically.
The five-judge bench held that civil court proceedings can be instituted against the President or a person performing the functions of the office of President during their tenure of office in respect of anything done or not done contrary to the Constitution.
Legally, the President is insulated from criminal proceedings while in office.
“A declaration is hereby made that Mr Uhuru Muigai Kenyatta has contravened Chapter 6 of the Constitution, and specifically Article 73(1)(a)(i), by initiating and promoting a constitutional change process contrary to the provisions of the Constitution on amendment of the Constitution,” the judges ruled.