When a lanky man with greying beard, flowing agbada and matching cap took to the stand before the Court of Appeal in July last year, and again at the Supreme Court today, few expected him to enthral the courtroom as he eventually did.
Before him, acclaimed giants of the courtroom had captured the imagination of the nation, bringing home Greek mythologies, spinning Biblical tales and weaving philosophical allegories to drive their points home.
Unbeknownst to many, Aluochier was as home as fish in water, having personally argued numerous cases before the courts, including a historic 2013 case in which he successfully sued President Uhuru Kenyatta and Deputy President William Ruto in their personal capacities.
To some of the appellate judges like Justice Gatembu Kairu, Mr Aluochier needed no introduction. His angular, unrelenting and determined frame had, as recent as 2018, stood before them to argue an appeal.
“My name is Isaac Aluochier, a petitioner. In profession, I am many things but for today I will call myself an arbitrator,” he introduced himself during the BBI hearing at the Court of Appeal in July last year.
He had barely started out when it became apparent that the next 45 minutes would be as captivating as any of the worthy parties before him. He went for the jugular of the BBI Steering Committee, faulting the manner of the establishment.
“On this alone, everything that came out of this steering committee was unconstitutional, null, void and invalid… Their reports, bills, gazette notices about them, everything. Dead on arrival.”
He trained his sharp tongue on BBI secretariat co-chairs Dennis Waweru and Junet Mohamed, saying they never authored the constitutional amendment bill. If they did, he argued, they plagiarised the BBI steering committee version.
But it was his argument that a popular initiative to amend the Constitution necessarily invoked a singular amendment that, if bought by the judges, would be a game-changer. According to this theory, BBI sought to effect 74 amendments in the place of one, and therefore the electoral commission ought to have crafted 74 initiatives, each obtaining one million support signatures, totalling 74 million.
And because it failed to handle “one issue at a time, one matter at a time” BBI ended up becoming a contradiction of terms, and an absurdity.
“It’s a legal phantom, a constitutional charade, and that’s what the two principals, appellant Uhuru, appellant Raila have foisted on this nation,” he submitted, taking full charge of his submissions.
With a fair deal of disdain on his face, he called BBI a “fake”, and recounted his history with Kenyatta, informing the court that the President was notorious for evading service.
“He plays hardball; appellant Uhuru knows these things. I am not surprised he’s behaving this way. That is his nature…”
He described the President as a mere employee of the real sovereigns, the people. Whenever he goes off the rail, it is the business of his employers to discipline him. He asked the court to do its job, without fear or favour.
“Do not let anyone, especially a mere employee of ours, ride roughshod on us. We are the sovereigns, we are the people.”
In the 2013 matter, Aluochier successfully managed to extricate President Kenyatta from his official web, knocking off Attorney General Githu Muigai’s office from defending him in a case he had filed.
In the case, Aluochier had argued that Uhuru and Ruto had been cabinet ministers and officials of political parties at the same time, contrary to the law. This was between August 27, 2010, and August 2011. He complained that they ought to have been punished for those transgressions.
Had they been disciplined, he argued, the pair would not even have become President and Deputy President in the first place. He now wants the court to declare that they were not qualified to hold their lofty offices on account of their past transgression.
Justice Isaac Lenaola threw out the AG, agreeing with Aluochier that the actions complained of involved Uhuru and Ruto’s past as officials of political parties. He drew parallels at the then-ongoing ICC cases against the duo.
“In fact, as an example, their ongoing trials at the International Criminal Court indicate that they are facing those charges as individuals and not as part of Government. They are, in those proceedings, represented by private legal Counsel and not the Attorney General,” Lenaola ordered.
Lenaola later went on to uphold the substantive petition, affirming that indeed Uhuru and Ruto contravened Article 77 (2) of the Constitution by holding the position of Cabinet ministers while at the same time holding political party positions. He, however, refused to move beyond that finding.
This was not the only case Aluochier was to be involved in. Sometimes back in 2016, he went for the necks of Parliament and the JSC for failing to act on his petition to kick out IEBC Commissioners and Supreme Court judges over the 2013 presidential petition.
Justice Edward Mureithi denied him most of the prayers but ordered JSC to perform its duty.
On January 28, 2018, Aluochier sought to have all 47 governors kicked out of office because, in his argument, they ought to have been MCAs in the first place by dint of Article 193(1).
Justice Wilfrida Okwany dismissed the bid, saying she found some of his arguments “twisted” and reflecting “lack of understanding or misapprehension of the provisions of the Constitution.”
Four months later, in early May, he moved to sue IEBC and its commissioners, for failing to settle his presidential election complaints lodged in the two presidential polls conducted in 2017. He also wanted the IEBC commissioners to personally refund the full amount incurred in conducting the repeat poll.
He wanted exemplary damages against IEBC of between Sh7 million and Sh70 million to be retrieved from the seven commissioners. In upholding preliminary objections on the matter, Justice J Makau complained that Aluochier filed an uncommissioned affidavit “to which, no much weight can be attached.”
“The petitioner quotes the relevant articles and section of IEBC Act but failed to link the respondent’s action with breach of the statute,” the judge said.