BBI appeal: Lawyers claim chances of success low

From left to right: Lawyers Bobby Mkangi, Charles Kanjama and Steve Ogolla. [Standard]

Lawyers  Steve Ogolla, Charles Kanjama and Bobby Mkangi say petitioners seeking to overturn the High Court’s Thursday ruling on BBI process will have a monumental task at the Court of Appeal.

Ogolla, who spoke to The Standard on Friday, May 14 said the grounds on which the BBI book was thrown out, were too strong to be reversed by a superior court. His school of thought was echoed by Kanjama and Mkangi.

The five-judge bench comprising Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita, and Teresia Matheka pronounced itself on 17 issues, key among them, the President’s role in initiating change through a popular initiative.

The judges unanimously ruled that President Uhuru Kenyatta cannot use the popular initiative route to institute changes to the Constitution.

The court further ruled that the Head of State, by choosing to use an unlawful method of changing the land’s supreme law, violated Chapter Six of the Constitution on Leadership and Integrity.

The judges also observed that the BBI process did not go through public participation as the law demands. On this, the court said the proponents failed to print and distribute copies for Kenyans to read and develop an understanding of what BBI aims to change.

Odunga, Ngaah, Mwita, Matheka and Ngugi further ruled that the 14-member BBI taskforce, which was formed to review areas that need Constitutional amendment, was illegally assembled.

The judges also observed that the BBI process initiated a referendum journey without a legislative framework, which would chart how the exercise would be conducted.

The bench held that the IEBC, which verified the collection of signatures endorsing the initiation of the process, was not properly constituted, as it had only three commissioners out of the statutory seven when it okayed continuation of the push.

The court also observed that there was no law in place to guide county assemblies on what to do with views collected before the BBI Bill could be deliberated upon.

Crafters of the Bill were also faulted for proposing to add 70 new constituencies in Kenya without consulting the IEBC, which possesses demarcation constitutional powers.

The judges ruled that the IEBC cannot go ahead with any referendum plans without conducting civic education and voter registration.

The petitioners included economist David Ndii, Kenya National Union of Nurses, Third Way Alliance Party, Makueni Governor Kivutha Kibwana, among others.

Last nail in BBI coffin

And now, lawyer Steve Ogolla says the judges conclusively drove the last nail in the BBI coffin.

“Unless they (BBI proponents) start the process afresh, they won’t overturn the High Court’s ruling; it was so conclusive,” Ogolla told The Standard.

“The permanent injunction issued against the IEBC from undertaking any exercise in regard to Constitutional change simply means the judges have told the electoral agency to forget about BBI,” said Ogolla.

The lawyer stated that even if the petitioner(s) would win in overturning a few of the reasons given in throwing out BBI, the others which would be upheld would disqualify the entire process.

Another lawyer, Charles Kanjama, told The Standard the petitioner(s) have a slim chance of overturning the High Court’s ruling.

“Another set of judges at the superior court might have a different philosophy from that of the five-judge bench at the High Court. However, I doubt if the appellate court judges will overturn all the decisions made by the lower court,” said Kanjama.

According to the lawyer, the last thing the courts would allow is a Constitution “founded on inclusivity and a manipulated public participation exercise”.

Constitutional lawyer Bobby Mkangi is in agreement with Kanjama and Ogolla, that reversing the High Court’s ruling is akin to chasing the wind.

“There are issues that could be overturned. However, chances are extremely slim that the entire ruling could be reversed. Honestly speaking, the five High Court judges were solidly thorough in their verdict that I don’t see much of the ruling being set aside,” Mkangi told The Standard.

Earlier Friday, city lawyer, Ahmednasir Abdullahi, who once termed the BBI process as “unconstitutional from the onset”, said the Attorney-General has a less-than-five per cent chance of succeeding should he appeal the lower court’s verdict.

Abdullahi, however, put the rider that the AG “could get a lifeline at the apex court”.

“The chances of the Court of Appeal overturning the High Court’s five judges' judgement on BBI is less than 5 per cent. The chances of the Supreme Court of Kenya overturning the BBI judgement is over 75 per cent. Five judges [of the Supreme Court] will overturn the ruling, two won’t. The Supreme Court is the weakest link in the Judicial chain,” Abdullahi said on Twitter.

Kivutha Kibwana, a governor-cum-lawyer who filed the successful petition against the BBI process, said it would be a tall order for anyone seeking to reverse the High Court’s verdict.

“Justices Ngugi, Odunga, Ngaah, Matheka, Mwita have shown unmatched patriotism. Their judgement has elevated Wanjiku to the pedestal she/he deserves. [It is] very difficult to appeal [against the decision]. The David Judiciary has faced the Goliath Executive/ Parliament. Nobody is above the law,” he said on Twitter on Thursday, May 13.

However, not all lawyers think the High Court’s decision would prevail.

Prof. Ben Sihanya, who was in the BBI Committee of Experts, told Citizen Television on Thursday night that the decisions made by the High Court were not founded on concrete grounds, claiming the President initiated the BBI process as a private citizen, and not as the Head of State.

Elias Mutuma, the lawyer of Third Way Alliance, one of the petitioners, told Citizen Television that the law bars the President from using the popular initiative route because the courts understand the powers that the Head of State wields, which he can use to his advantage when accorded the “private citizen” tag.

Mutuma, just like Ogolla and Kanjama, claimed it would be a daunting task for the government should it appeal the lower court’s ruling.

Lawyer-cum-Ruaraka Member of Parliament Tom Joseph (TJ) Kajwang told KTN News on Thursday night that the five judges’ decision was inspired by “judicial activism”, and not on any legal basis.

The Law Society of Kenya (LSK) President, Nelson Havi, stated on Twitter that lawyers who advised President Kenyatta and ODM leader Raila Odinga on the BBI process, whose end in mind was a referendum, did a shoddy job.

“Does it not surprise you that James Orengo SC and Otiende Amollo SC were not in the BBI Bill case for Raila Odinga and further, that Fred Ngatia SC and Ahmednasir Abdullahi SC were not there for Uhuru Kenyatta either? Quacks misadvised the two brothers,” Havi tweeted on Thursday, May 13.

Lawyer-cum-ODM Secretary-General, Edwin Sifuna, told The Standard they are planning to appeal the High Court’s ruling.

The Attorney-General of Kenya, Kariuki Kihara, has communicated a notice of appeal, saying the High Court erred in dealing the BBI process a blow, and that a higher court is better-placed to give an interpretation on whether public participation was adequately conducted.

The BBI Secretariat, through its co-chairperson, Junet Mohamed, said on Friday that they respect the High Court’s ruling, but do not agree with it, and, would, therefore file an appeal at the superior court.

“It is not over yet! We still believe a new Kenya is possible, and the BBI will give birth to that new Kenya. We would fight to the bitter end,” Junet said in a press conference at the Secretariat headquarters in Nairobi.