Junet and Waweru are sole promoters of BBI, Raila's lawyer tells court

Senior counsel Otiende Amollo at the Appellate court for the hearing of the BBI appeal on June 30. [Denish Ochieng, Standard]

The brains behind Building Bridges Initiative (BBI) are Suna East Member of Parliament Junet Mohamed and former Dagoretti MP Dennis Waweru, the Court of Appeal was told yesterday.

The two, the appellate court heard, were the sole promoters of BBI and not President Uhuru Kenyatta and former Prime Minister Raila Odinga.

On the second day of hearing the BBI battle, Raila's lawyer Otiende Amolo said that contrary to the finding by the High Court that the President started the initiative, and therefore it was illegal, Junet and Waweru were the engines behind the review process.

In a bid to disengage BBI from the handshake principals, Amollo argued that Junet and Waweru were the faces of the BBI team from the time they engaged Independent Electoral and Boundaries Commission (IEBC) collecting signatures and engaging Parliament.

According to Amollo, the High Court erred by faulting Uhuru, as the Constitution in Article 257 does not have the word initiator. Instead, he argued it has the word promoter. 

From left, Limuru MP Peter Mwanthi, ODM Secretary-General John Mbadi, BBI Secretariat's Dennis Waweru, Junet Mohammed, Jubilee Secretary-General Raphael Tuju, Eldas MP Adan Keynan, and Nyeri MP Ngunjiri Wambugu. [Samson Wire, Standard]

Amollo, who is also Rarieda MP, added that even if Uhuru took part, the life of the task force and select committee which he appointed ended on June 30, 2020, before BBI train left the station.

“The effort to tie those two (task force and select committee) to this initiative is therefore futile,” he argued.

“Can the president initiate a popular initiative? In this case we say he did not. The promoters of the BBI initiative were the two gentlemen (Junet and Waweru) we have mentioned and anyone is allowed to support. Anyone in this country, including the president and any person in this court, can support popular initiative.”

Amollo was of the view that the standard set by the High Court is impossible to achieve for a common Kenyan.

According to him, Wanjiku will first have to write the Bill, then translate it into different languages, approach the court for interpretation whether they can amend the Constitution, thereafter, move all over the country to collect signatures.

Meanwhile, Wanjiku is required to print enough copies of the law to be amended and supply it all over the country while conducting civic education, then approach IEBC, 47 counties, Parliament for it to pass.

Judges at the Appellate court for the hearing of the BBI appeal on June 30. [Denish Ochieng, Standard]

He was of the view that the High Court conferred itself powers of the Supreme Court.

“We wish to submit, those prescriptions are utopic. They are impossible to achieve. They have planted them in the Constitution, which is not possible to achieve,” he said.

On verification, the lawyer argued that IEBC is only required to verify one million voters and not signatures.  

Meanwhile, Amollo asserted that a referendum cannot have multiple questions.

He said Article 257 of the Constitution does not envision having Bills as it is couched in a singular form.

“The entirety of Article 257 is in the singular, a, the, it. In all those instances, it refers to the Bill and not the questions; you must reduce it to a Bill. Whenever you talk to a, the, it, it does not refer to a question. It does not allow for a possibility of multiple question,” he submitted.

While faulting High Court judges Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresiah Matheka, the senior lawyer argued that the court did not explain which chapters of the Constitution cannot be amended, it dropped the five chapters which economist David Ndii team had identified.

In addition, he said, judges picked their own chapters that are not anchored on the first three chapters of the Constitution.

Court of Appeal President Daniel Musinga and Justices Roselyn Nambuye, Hannah Okwengu, Patrick Kiage, Gatembu Kairu, Fatuma Sichale and Francis Tuiyott are hearing the case.

Court of Appeal President Daniel Musinga (left) at the Appellate court on June 30, 2021. [Denish Ochieng, Standard]

Amollo argued that although the High Court relied heavily on the Constitution of Kenya Review Commission (CKRC) to determine which chapters can be amended or not, the report does not talk about amendable and non-amendable clauses.

At the same time, senior lawyer Lucy Kambuni, who is also representing the former prime minister, faulted the High Court for finding that BBI promoters ought to conduct public participation.

She argued that the law envisages that promoters only need the support of 1 million people.