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.
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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.
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.
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“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.
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University of Nairobi don Herman Manyora, believes that as politicians, Mr Kenyatta and Mr Odinga have something up their sleeves to rescue the sinking BBI boat.
“They will pursue an appeal and they will likely win and the referendum will go on. The big question, however, is on legitimacy. Even without this (High Court) ruling, there was going to be the question of legitimacy. This judgment makes it worse for them,” said Prof Manyora.
As the BBI proponents plot their next move, DP Ruto and his allies, on the other hand, have been holding virtual victory laps over the High Court judgment.
Immediately after the judgment was delivered on Thursday evening, Dr Ruto posted on Twitter: “There is God in heaven who loves Kenya immeasurably. May God's name be praised forever.”
Then on Friday morning, as if to savour the ‘victory’, he posted: “Our democracy is anchored on the rule of law, constitutionalism, separation of power and respect for independent institutions. All patriotic citizens must defend these tenets just like the judiciary did. Now let's focus on Covid-19 vaccination, economic recovery, the Big4 and stay united.”
Legally, the room to manoeuvre has considerably shrunk for the BBI proponents, says Kenyatta University's political economy and history lecturer, Dr Edward Kisiangani.
“Even if there are options available, they are not very strong,” he added.
According to political analyst Dismas Mokua, the urgent matter for the President and Mr Odinga right now is to save themselves from embarrassment.
“They will employ all resources and sharpen all the tools at their disposal to save the BBI or avoid any further embarrassment,” said Mr Mokua.
Politically – and this has started showing from supporters of the two principals – the idea of bastardising the ruling and going for the individual judges who ruled against the BBI has been considered. It is a vicious scheme meant to ‘slow them down’ going forward.
The plot, we established, is to paint the judges as being driven by revenge and malice after President Kenyatta refused to swear some of them in after the recommendation of the Judicial Service Commission (JSC) in 2019.
Justices Ngugi and Odunga, who were members of the five-judge bench that tossed out the BBI proposal to amend the constitution, were among the 11 persons the JSC had recommended for appointment as judges of the Court of Appeal.
On social media, claims of the judges taking advantage of the petitions against BBI to get back at the government have been prevalent.
The BBI secretariat co-chairman Junet Mohamed, in a press conference in Nairobi on Friday, hinted at that. He accused the five judges, with the help of a section of politicians opposed to the BBI and members of the civil society, of judicial activism and subverting the will of millions of Kenyans who endorsed the BBI bill.
“This was a very deliberate design to plunge the country into a constitutional crisis and chaos through judicial activism,” said Mr Mohamed.
Through the Constitution of Kenya (Amendment) Bill, 2020 (BBI Bill), President Kenyatta and Mr Odinga had promised their political bases of goodies that would come their way if they supported and adopted the proposed changes in a referendum – new constituencies, more money to counties, inclusivity through expanded executive, and ward development fund among others.
The bill was birthed by the March 9, 2018, ‘handshake’ on the steps of Harambee House when President Kenyatta and Mr Odinga promised “to create a united nation for all Kenyans living today, and all future generations.”
The High Court, however, faulted the process the BBI took, which they said lacked public participation. They also faulted the initiation of a popular initiative by the President. The court also issued a permanent injunction against the Independent Electoral and Boundaries Commission (IEBC) from undertaking processes to prepare for a referendum in respect to the Constitution of Kenya (Amendment) Bill, 2020.
“To the extent that the BBI Steering Committee was employed by the President to initiate proposals to amend the constitution contrary to Article 257 of the Constitution, the BBI Steering Committee is an unconstitutional entity,” the judges said.
The loss no doubt jolted the handshake alliance, which was planning Mr Kenyatta’s succession largely based on new positions such as that of prime minister contained in the proposed constitutional changes.
Constitutional lawyer Bobby Mkangi says the BBI proposal gives strength to pre-election coalitions of which if they win the polls, they share positions as agreed and in a scenario that referendum is not conducted before next year’s election, there is a likelihood of political realignments, adding that the Thursday decision has taken political bigwigs to the drawing board.
“BBI architecture no doubt provides great opportunity for political pre-election coalitions on the basis of the executive slots that can be shared. If the proposed amendments are affirmed through a referendum, it will open up political realignment and coalitions, and deal sealing before the 2022 General Election and vice versa,” he argues.
Governance expert Javas Bigambo says the court decision is likely to “signal the end of the deal with the BBI”. "What unites President Kenyatta and Mr Odinga is the two issues in the three years that the process has been in the eyes of Kenyans. Its breakdown means the political closeness of the two is over, if there is no room for those running the scheme to file an appeal in court,” said Mr Bigambo.
He explains that this will also provide an opportunity for new political alliances to be formed, especially among leaders who felt excluded from the process. "We will witness politicians forming political alliances on the basis of 'revenge' exclusion from the program," he said. Mr Bigambo thinks that without a BBI referendum, the Head of State will not find it easy to influence his succession and there is likelihood of finding himself between a rock and a hard place.
Prof XN Iraki of the University of Nairobi argues that an end to the process is likely to scuttle dreams of the political bigwigs.
“BBI referendum will be a dress rehearsal for 2022. Politicians would love it. It will help them refine their 2022 strategies. It is more than that, If BBI goes through, winning in 2022 will be easier, just distribute the top five national positions (President, DP, PM and his two deputies) to the regions that matter. Not holding it will scuttle lots of political dreams. Remember BBI is a political investment, the investors are awaiting returns through 2022 polls,” he says.
