• The arguments advances are faulty.
• The court will stand up to defend the basic structure of the Constitution.
The appellants have presented their case. Their arguments are very solid because the other parties have not started their arguments.
A case has two sides. They have gone to the question of basic structure and the jurisprudence behind the decision of the High Court.
Appellants have equally attacked the credibility of the High Court.
Paul Mwangi calls it a theocracy.
Senior Counsel James Orengo brings in a political aspect that the courts did not appreciate the political aspect.
Solicitor General Ken Ogeto really captured the intention of the appeal. The lawyers who took over from George Oraro, Karori and Orengo didn't capture the opening remarks of the Solicitor General.
So what is likely to happen will come out from the unextraordinary trial.
Kenyan courts are adversarial.
Judges don't ask anything but in this trial, it's a replica of the 2017 presidential petition battle at the Supreme Court.
The judges are asking, and among the questions Justice Kiage asked is, "Do you mean that the people can amend the Constitution and say they want to abolish the Parliament or the Executive?
"Are you saying that the people can amend the Constitution to do away with Executive or Judiciary?
If they are supreme, is democracy going to be defined according to the Kenyans' will?
How are we going to deal with the Kenyan Constitution with regard to international law?
In essence, the [High Court] judges' arguments are that Kenyans are not totally supreme but subject to international laws.
From that perspective, my take is that the judges are going to dismiss the appeal on simple grounds that from the body language of the judges, they don't foresee the appellant convincing them.
Another dimension why I think the case is likely to be lost is that the judges where they are sitting— based on the onslaught from the Executive if they rule that the people have the say to do anything — whatever they do there is a likelihood the Judiciary will be abolished by the Executive.
There is a possibility the Legislature will be abolished so that we have only one arm of government, which is Executive through a referendum which is controlled by the Executive.
That is the fear I saw in the eyes of the judges.
There must be a role of the Judiciary to defend international laws, international norms and basic structure. I don't think the petition is going to succeed based on the entreaties by proponents of the BBI
The lawyer spoke to The Star