High stakes in BBI appeal as parties assemble top lawyers

A section of lawyers led by James Orengo (right) and Paul Mwangi follow proceedings at the Supreme court building on June 2, 2021, during the mention of the BBI case appeal.[Collins Kweyu,Standard]

The high-stakes games deployed to save the soul of the Building Bridges Initiative (BBI), the vehicle meant to amend the Constitution, came to the fore yesterday as parties assembled top lawyers to prosecute their cases.

In scenes reminiscent of the 2013 and 2017 presidential election petition at the Supreme Court when the country’s top lawyers converged, the BBI appeals promise fireworks.

However, as opposed to the presidential election petition where both sides had the best lawyers on their sides, the BBI appeal is like a David versus Goliath battle where one side has the legal crème-de-la-crème while the other has young enterprising lawyers spoiling for a fight.

President Uhuru Kenyatta, ODM leader Raila Odinga, Attorney General Kihara Kariuki, Independent Electoral and Boundaries Commission (IEBC) and the BBI Secretariat have gone for senior lawyers who were engaged in the election petition.

And unlike in the presidential election petition where Uhuru and Raila were on opposing sides, they have brought their troops together to save their pet project, BBI, which was born out of their March 2018 handshake to end the bad blood occasioned by the hotly contested presidential election.

President Kenyatta and Raila have retained their trusted legal minds, with the president sticking with senior counsel Gatonye Waweru, Mohammed Nyaoga, Desterio Oyatsi and Tom Macharia.

According to the president’s lawyers, their mission was to clear his name after the five High Court judges declared that he has breached Chapter Six of the Constitution on leadership and integrity, and that he had no powers to initiate popular constitutional amendment process.

“He was unfairly indicted by the High Court judges when he was not a party to the suits. The judges were so emotional in their decision against the president and he feels the stakes are so high for his legacy and wants to defend it using the best team,” said one of the lawyers in his team.

Raila and the BBI Secretariat team is led by Siaya Senator James Orengo and lawyer Paul Mwangi. Others are Rarieda MP Otiende Amollo, Ben Sihanya, Jackson Awele and Arnold Oginga.

The electoral commission settled on former Attorney General Githu Muigai as the lead counsel assisted by lawyer Eric Gumbo.

As the chief legal adviser to the government who carries the burden of advising the president on legal matters, the AG has gone all out to assemble a team of top lawyers.

Leading his charges are Senior Counsel George Oraro and Solicitor-General Kennedy Ogeto. Also in the AG’s team are lawyers Paul Nyamodi and Kamau Karori.

The lawyers were in opposing teams during the presidential election petition where Oraro represented Raila, with Ogeto representing Uhuru while Karori and Nyamodi were for the IEBC.

In contrast, the eight petitioners who successfully challenged the BBI at the High Court now find themselves on the defensive side. John Khaminwa, who represents Kenya Human Rights Commission, is the senior-most counsel alongside Law Society of Kenya President Nelson Havi, who represents economist David Ndii and others.

Also opposing the appeals are lawyers Elias Mutuma for Thirdway Alliance, Dudley Ochiel, Morara Omoke, Michael Karanja, Muthomi Thiankolu and Charles Karanja.

“We know our opponents have a lot of muscle and big experienced lawyers at their disposal, but we are not afraid of them. We faced them at the High Court and won,” said Karanja.

Appellate judges Daniel Musinga, Roseline Nambuye and Hannah Okwengu will hear the BBI appeals in four days starting June 29.

Paul Ogemba