LITIGATION EXPERTS

Uhuru, Raila tap top lawyers in BBI fightback

Senator Orengo, MP Otiende Amolo and ex-AG Githu Muigai among the legal heavyweights leading the appeal

In Summary
  • The eight lawyers range from celebrated constitutional legal titans to avid trial experts, tipping the Court of Appeal for a major showdown against anti-building Bridges Initiative forces.
  • The BBI and IEBC legal team attacks would be a multi-pronged duel at the Court of Appeal to not only salvage BBI but also to rescue the electoral commission.

 

President Uhuru Kenyatta shares a word with ODM leader Raila Odinga during the launch of the BBI Report on November 27, 2019.
President Uhuru Kenyatta shares a word with ODM leader Raila Odinga during the launch of the BBI Report on November 27, 2019.
Image: COURTESY

President Uhuru Kenyatta and ODM leader Raila Odinga are set for major fightback to salvage BBI through a legal battle involving the crème de la crème of constitutional lawyers.

The eight lawyers range from celebrated constitutional legal titans to avid trial experts, tipping the Court of Appeal for a major showdown against anti-building Bridges Initiative forces.

The Star has established that while the BBI team and the IEBC lawyers are pursuing different appeals, a big meeting bringing together all the lawyers was held sometime this week.

The BBI and IEBC legal team attacks would be a multi-pronged duel at the Court of Appeal to not only salvage BBI but also to rescue the electoral commission.

This even as it emerged that acting Court of Appeal President Wanjiru Karanja is expected to constitute a bench to hear and determine the appeals once formally filed at the court.

Uhuru and Raila are said to have brought together leading legal minds in constitutional law including Siaya Senator James Orengo and Rarieda MP Otiende Amolo as part of the BBI counsel.

Also notable in the team are revered litigation experts including those involved in the successful 2017 presidential petition against the reelection of  Uhuru.

Senior Counsel George Oraro who was among Raila's lawyers in the presidential petition as well as Waweru Gatonye who represent IEBC in battle to overturn Uhuru's reelection four years ago, are in the list.

Featuring in the list, the Star understands, is Raila's legal adviser and the BBI secretariat lawyer Paul Mwangi, and Eric Gumbo who is in the IEBC team.

BBI task forcr co-chair Paul Mwangi
BBI task forcr co-chair Paul Mwangi
Image: FILE

Public officers who are lawyers among them Central Bank of Kenya chairman Mohamed Nyaoga, his National Land Commission counterpart Gershom Otachi are working behind the scenes.

Solicitor General Ken Ogeto is also in the team gearing up for the landmark appeal battle in the country's second highest court.

Former Attorney General Githu Muigai is leading the IEBC legal team.

When reached for comment, Muigai admitted to being the IEBC's counsel leading the battle against the High Court ruling, adding that their appeal would have high chances of success once lodged.

“It is a good appeal and properly constituted,” Muigai told The Star without elaborating on the finer details of the appeal.

However, Mwangi confirmed that the BBI legal team will be expanded to include leading constitutional lawyers.

"The team will be expanded definitely but we will reveal the names at a later date," Mwangi said.

When contacted Oraro said he would neither confirm nor deny when asked if he had joined the BBI legal team.

Some constitutional experts have warned that the the staggering blow that was dealt on Uhuru and Raila by the High Court may not be cured by an appeal.

In a landmark judgment, a five-judge High Court bench scuttled the BBI process, terming the three-year quest to amend the Constitution illegal, null and void.

The High Court judges cited about 20 grounds for nullification of the process, including a declaration that the BBI task force that engineered the law change is an illegal entity.

Among the issues include the declaration of President Uhuru as a violator of Chapter Six of the Constitution, lack of quorum at the IEBC, lack of referendum law and framework and the finding that the proposed new 70 constituencies are illegal.

A section of lawyers have said it will take a legal miracle for the government to secure victory in the Court of Appeal and have all the cited grounds overturned.

The bench, led by Justice Joel Ngugi, said Uhuru made a fatal legal mistake in attempting to change the Constitution through a popular initiative, an avenue that is not available to a President.

The court also ruled that the President had violated the Constitution and Chapter Six on Leadership and Integrity, setting the stage for a possible impeachment to remove him from office.

Siaya Senator James Orengo
OPTIMISTIC: Siaya Senator James Orengo
Image: FILE

The judgment arose out of seven cases filed against the BBI Bill by various activists including David Ndii and the Thirdway Alliance party.

Attorney General Kihara Kariuki has filed a notice of appeal seeking to overturn the five-judge bench decision that threw the BBI process into disarray.

However, the AG on Tuesday withdrew a separate application he had also filed at the Constitutional Court seeking to stay the BBI judgment, instead opting for a substantive appeal at the Court of Appeal.

The Attorney General hereby withdraws his notice of motion application dated  May 14 as that he is desirious of invoking the concurrent jurisdiction of the Court of Appeal to seek similar reliefs,” the AG said in a statement dated May 18.

The court was expected to give a ruling based on the written material placed before it by email on May 26.

Justices Joel Ngugi, George Odunga, Jarius Ngaah, Chacha Mwita, and Teresiah Matheka were to decide if they will temporarily suspend the judgement they issued pending conclusion of the appeal.

 

-Edited by SKanyara