Amid the anger and disappointment at the High Court ruling that shredded the push to amend the constitution through the Constitution of Kenya (Amendment) Bill, 2020, promoters and supporters of the initiative are plotting their next moves.
In a series of meetings that began as soon as the High Court finished reading the summary of its decision, close aides and allies of President Uhuru Kenyatta and ODM leader Raila Odinga , who are the chief proponents of the Building Bridges Initiative (BBI), were exploring political and legal options as they rush to avoid an embarrassing end to a journey that started in March 2018.
The legal team assembled by President Uhuru Kenyatta and ODM leader Raila Odinga have identified at least 14 grounds on which they will be seeking to convince the Court of Appeal either tomorrow or Tuesday to set aside a judgment by the Constitutional Court which dismissed the push to amend the constitution through the Building Bridges Initiative (BBI) as an illegal.
And yesterday, Mr Odinga released a statement where he said they will move to court but also called for sobriety. He was speaking for the first time since the court delivered the verdict.
“We will move to the Court of Appeal to present our case as to why we think the High Court did not render the right verdict. We will do so with sobriety and with respect for our judges and courts,” Mr Odinga said.
As of last evening, the teams had held at least six brainstorming meetings, both at the State House with Attorney-General Kihara Kariuki leading one team and at Mr Odinga’s Karen home led by lawyer Paul Mwangi, who is also the former premier’s legal advisor, with participants exuding confidence that they will convince the appellate court to set aside the High Court decision.
The BBI secretariat and Mr Kariuki are expected to jointly move to the Court of Appeal as early as tomorrow.
By last evening, a star-studded legal team that has some of the lawyers which appeared for both Mr Kenyatta and Mr Odinga in the 2017 presidential petition were drafting the appeal as the Sunday Nation learnt that they had identified 14 grounds to file for the review of the verdict.
“We will just go up the ladder and appeal. The decision is fundamentally flawed, so we will challenge it,” said Ken Ogeto, the Solicitor-General. Mr Ogeto termed the High Court ruling by Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka “an academic dissertation”. A number of names have been considered and some have been approached though with a mixed bag of success. Some of those approached have expressed reservations about taking up the assignment for fear the initiative may tarnish their reputation.
The strategists have been bold enough to even approach an advocate who has in recent times mostly allied himself to Deputy President William Ruto’s wing of the Jubilee Party.
The lawyer, Sunday Nation learnt, was surprised to receive a call from the BBI strategists asking him to join the team that will argue the appeal at the Court of Appeal.
Names of lawyers James Orengo, Ahmednasir Abdullahi, Paul Muite and Kioko Kilukumi, all senior counsels have featured in many of the planning meetings. Yesterday, one of them with a history of defending the constitution and civil liberties expressed his reluctance to take up the assignment.
Former Attorney-General Githu Muigai has also been approached to buttress the team up.
Some of the lawyers have also kept away from the media to defend the BBI, leaving mostly Mr Odinga’s long-term legal adviser Mr Mwangi to do the job.
“This of course is a coup against the sovereignty of the people. While the people of Kenya at Bomas had said that judges will not have any power to decide the validity of any clause of the constitution, the judges have now found a way to curtail the sovereign power of the people by giving the court power to decide what enters the constitution. This is politics, not law,” Mr Mwangi argues.
Yesterday, Amani National Congress leader Musalia Mudavadi, one of the key proponents of BBI alongside Kalonzo Musyoka of Wiper, Ford Kenya’s Moses Wetang’ula, Gideon Moi of Kanu, and National Rainbow Coalition (Narc) boss Charity Ngilu, called on use of Inter-Parties Parliamentary Group (IPPG) model to implement some of the BBI proposals.
Mr Mudavadi said even if the court’s decision is appealed, the constitutional review will be facing timeline hurdles.
“We are acutely aware that constitutional timelines will be in the way, regardless of the result of the appeals. For instance, the proposed 70 constituencies would not be applicable in the next election if the entire process of the referendum is not concluded before August 2022. This means that regardless of the results from any appeals preferred, the bulk of the provisions of the bill will not, for sure, become operational in next year’s polls,” said Mr Mudavadi.
He suggested that in order not to lose the entire BBI bill, there is a need for leaders to embark on what he described as “inclusive national dialogue”.
“Kenyans, we should not throw out the baby with the bathwater. There must be a silver lining out of the court’s judgement and this is what we must look out for as a nation. All is not lost. We recommend and appeal to all leaders to consider a return to the conversation table and re-start an inclusive national dialogue styled in the format of the 2002 IPPG arrangement. This national dialogue should be as inclusive as possible,” said Mr Mudavadi.
There is also the plan to launch a vigorous campaign to sway the public into supporting the BBI agenda.
While there is almost consensus among key players that times are hard and a referendum should not be a priority at the moment, something DP Ruto has been using to try and shoot down the initiative, they are upbeat that a concerted campaign to project the potential benefits to the people will not only help assuage the apathy but also help address questions around legitimacy of the process and the impact of the court ruling.
“I am convinced beyond any shadow of doubt as a writer and leading commentator on the Kenyan Judiciary, that the BBI case decided this week is one of the cases being used by this cabal in directing political change in this country. I will lay out how these political objectives were pursued in the BBI case,” lawyer Mwangi said.
By Nation Africa