Moment of truth for Uhuru, Raila as BBI court battle begins

A seven-judge bench led by Court of Appeal president Daniel Musinga begins hearing the cases challenging the nullification of the Building Bridges Initiative process and referendum today. 

High Court judges on May 17 declared the process illegal and unconstitutional and censured the electoral agency for plans to hold a referendum without proper public participation. 

President Uhuru Kenyatta and ODM boss Raila Odinga, key proponents of the push to change the Constitution, are seeking to convince the Court of Appeal judges to clear the road for a referendum.

Legal experts have argued that whichever way the ruling goes at the second-highest court, the battle will most likely end up at the Supreme Court.

On Monday, BBI secretariat co-chair Denis Waweru told the Star that they hope that the Appeal Court will overturn the High Court ruling. 

"We have a very competent legal team and a very strong case. We hope that we are going to win the case since we have very strong grounds as the promoters," the former Dagoretti South MP said.

Waweru, who alongside Junet Mohamed were the promoters of the Constitution of Kenya (Amendment) Bill, 2020 said they feel that the High Court erred in their judgment. 

"For instance, the judgment was misdirected at the wrong people, it was a misrepresentation of facts since President Uhuru and Raila were not the promoters," he said.

The High Court ruled that President Uhuru acted unconstitutionally by seeking to amend the Constitution through the popular initiative, an option they said is left for ordinary citizens and not the executive.

Justices Joel Ngugi, George Odunga, Jairus Ngaah, Teresia Matheka and Chacha Mwita said amendments cannot be made to the basic foundation structure of the Constitution as BBI was proposing.

“It is our finding that popular initiative is a power reserved for Wanjiku neither the president nor any other state organ can utilise Article 257 to amend the Constitution,” the judges ruled in May.

Expressing confidence that the BBI reggae will resume, Waweru said Kenyans should be ready for a referendum. 

"We hope that this matter will not go to the Supreme Court; we just believe that those fighting BBI will give up if the Court of Appeal gives the process the green-light," he said.

The case will run until Friday, before the judges retreat to write their judgment.

Last week Deputy President William Ruto, seen as the face of the anti-BBI crusade, accused Uhuru of trying to use state power and influence to amend the law.

The DP said he agreed with the High Court judgment that reaffirmed the basic structure doctrine of the Constitution which protects fundamental provisions against any review.

“It cannot be that you can change the Constitution the way you want, in the manner in which you want, to the extent you want, because you have power, you have influence and you can use a mechanism,” Ruto said an interview with KTN News.

On Monday, Junet told the Star that they hope the court will give the BBI proponents justice by overturning the High Court ruling.

The Suna East MP and a Raila confidant accused the DP of trying to dictate to the Judiciary the direction the BBI case will take.

"Let us not politicise the case, we expect justice to be served because we have strong grounds. Those telling judges on what to do like what the deputy president is doing should stop and allow judges to do their work," he said.

The appeal was filed by President Uhuru, Raila and the BBI Secretariat, the Attorney General and the Independent Electoral and Boundaries Commission.

The anti-BBI team scored the first win when the Appellate Court allowed Thirdway Alliance party chairman Miruru Waweru to produce fresh evidence to prove that the BBI process is illegal.

Waweru was allowed to adduce the report of the National Assembly and Senate on BBI and the Hansard of the Senate on the debate and approval of the Constitution of Kenya (Amendment) Bill, 2020.

The two documents contain debate by Parliament on the BBI Bill with arguments that various proposals such as the delimitation of constituencies were legally flawed. 

In the ruling, the appellate court said the additional evidence is relevant to the legal dispute. 

Judge Musinga will sit on the bench with Roselyne Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuyoitt.

President of the Law Society of Kenya Nelson Havi, who was one of the petitioners that successfully blocked BBI at the High Court, has already warned that the Court of Appeal must be up to the task.

“This will be the biggest test for Court of Appeal’s jurisprudence quotient,” he said during the swearing-in of Musinga.

In the major fightback to salvage BBI through a legal battle, Uhuru and Raila have hired top constitutional lawyers to argue their case.

In scenes reminiscent of the 2013 and 2017 presidential election petitions at the Supreme Court, the BBI appeals promise fireworks.

Unlike in the presidential election petition where Uhuru and Raila were on opposing sides, they have this time brought their troops together. 

President Uhuru will be represented by lawyers Gatonye Waweru, Mohammed Nyaoga, Desterio Oyatsi and Tom Macharia.

Raila and the BBI secretariat team is led by Siaya Senator James Orengo and lawyer Paul Mwangi. Others are Rarieda MP Otiende Amollo, Ben Sihanya, Jackson Awele and Arnold Oginga.

The electoral commission settled on former Attorney General Githu Muigai as the lead counsel assisted by lawyer Eric Gumbo.

The AG brought on board George Oraro and solicitor general Kennedy Ogeto. Also in the AG’s team are lawyers Paul Nyamodi and Kamau Karori.

Both Raila and Uhuru have also expressed hopes that they will triumph at the Court of Appeal.

“We have our team of lawyers led by none other than the Senator of Siaya, James Orengo. We are confident that through this competent team we are going to succeed. That BBI is going to move forward. That ‘reggae’ will march on,” Raila said during the burial of former Gem lawmaker Jakoyo Midiwo over the weekend.

The BBI is an offshoot of the handshake deal by Uhuru and Raila which analysts have argued provides the platform to execute a 2022 succession plan.

The initiative proposes, among others, the expansion of the Executive by introducing the posts of prime minister post with two deputies, office of the leader of the Opposition and the Judiciary Ombudsman.

Critics say it is a selfish initiative to reward political dynasties, and that it will lead to a bloated Parliament and Executive in a country already burdened by debt cannot afford.

Uhuru and Raila believe BBI further provides the surest avenue to the economic prosperity of the country and its citizens.

(edited by o. owino)