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Top legal minds in ODM split over fresh push to amend BBI

By Oscar Obonyo | April 18th 2021
Former Prime Minister Raila Odinga appends his signature during the launch of signature collection for the BBI. [Stafford Ondego, Standard]

Trouble is brewing within Raila Odinga's legal think-tank following conflicting positions on the procedure of prosecuting the Building Bridges Initiative (BBI).

The emerging crisis has split the Orange Democratic Movement's (ODM) legal fraternity into two rival camps, with one side led by Senate Minority Leader James Orengo and the other by lawyer Paul Mwangi, who served as Joint Secretary to the BBI.

Orengo is pushing for the reopening of the BBI document for fresh amendments, while Mwangi maintains any change to the document, “including introduction of a mere coma,” will render BBI an illegal process.

The conflicting legal opinion, The Sunday Standard has reliably learnt, has left Raila, the ODM leader and former Prime Minister in a political quandary.

Coming when Raila is on a quiet break recuperating from the effects of Covid-19, following recent hospitalisation, the internal crisis could not have come at a most unwelcome moment for the 76-year old politician. 

“Lawyers can be highly opinionated on such matters. These two gentlemen have been sneaking to Jakom’s (Raila) house separately angling for different positions thereby causing more confusion on the BBI issue,” laments a senior politician from western Kenya, privy to the development.

Orengo and Mwangi are Raila’s most trusted legal minds, having served him over the last two decades.

Orengo led the legal team that successfully represented Raila in a poll petition leading to the historic voiding of a presidential election by the Supreme Court. Mwangi is a long-term private lawyer of the Orange party leader, who also served as legal advisor during his tenure as PM and was recently seconded to the BBI secretariat by Raila.

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A joint National Assembly and Senate Justice and Legal Affairs Committee (JLAC) co-chaired by Kangema MP Muturi Kigano and Nyamira Senator Okong’o Omogeni, is set to go on a four-day retreat from tomorrow to consider the issue of pushing through fresh amendments to the BBI document, among other thorny issues.  

This comes in the backdrop of a push by the proponents to have the Bicameral House convene this week for a special sitting to deliberate on the Constitution of Kenya (Amendment) Bill, 2020.

Under pressure

Raila, who is a co-partner of President Uhuru Kenyatta in the symbolic Handshake deal of March 2018, has been keen on comprehending the emerging developments of the BBI process, with a view to taking a position on the same ahead of tomorrow’s retreat.

According to our sources, the opposition politician has also been under pressure from the president who is reportedly interested in having their positions aligned.

And although Raila has previously and publicly pronounced himself on this subject stating that the BBI report can only be endorsed or rejected in total at the ballot, the persuasion that the document can be reopened is indeed causing fresh puzzlement.    

It emerged from within Raila circle that the president’s Karen visit to check on him after he announced that he tested negative to Covid-19 was to resolve simmering tension arising from the hard-line position taken by his allies to effect changes to the Bill.

"ODM had stalled the BBI process in the Joint Justice and Legal Affairs Committee and accused civil servants, singling out Interior Principal Secretary Karanja Kibicho of hijacking the process."

“The ODM leadership was rattled by the civil servants’ interference and therefore opted to frustrated the process with a view to push for amendments in the bicameral House. Some members shot down the proposals to amend the Bill as per Article 94 of the Constitution," said committee member.

"We will not move any amendments. Any suggestions to reopen the Bill will cause more problems. We decided to let the promoters (Uhuru and Raila) deal with the baby (mess) as it is. If you touch one, you must be prepared to open others. There will be no end. The blame will be a shift to us if anything goes wrong.”

Last month when the committee sought an extension to engage experts Prof Patricia Mbote and Collins Odote, ODM MPs took a different position in both Houses. Prof Mbote is a trainer at the BBI secretariat.

Kigano pushed for the establishment of a sub-committee comprising himself, MPs Atiende Amollo (Rarieda), Jennifer Shamala (Nominated) and Senators Omogeni, Orengo and Naomi Waqo (Nominated) to seek services of experts to guide them on “weighty constitutional” matters.

A team of eight lawyer-senators, led by Orengo, yesterday met to push for some amendment including the thorny issue of the IEBC.

Ruaraka MP T.J Kajwang’ said that Parliament’s role is not ceremonial and that MPs have powers to amend any Bill that comes to the House including the BBI one.

“What are you saying is ceremonial?  Parliament is not ceremonial. We have powers. Bring this thing before us we deal with it as the National Assembly," said Kajwang.

Orengo also shared a similar view in the Senate, warning that the role of Parliament cannot be merely ceremonial as per Article 94 of the Constitution.

“If you go to the Committee of Experts, the way they conducted their business, almost on every issue, on every article, there is little backing on the position that they took,” said the Minority Leader during debate on the extension of time for the JLAC.

He said: “The shame of the parliamentary process during the constitution-making process, which came to this Parliament, was that in our debate (if you go to the Hansard records) the public would not be able to understand the position taken by Parliament in 2010.”

He also took issue with content. “And even on the issue of content, Parliament must give an answer. I would plead with people who are making commentary on this process, to be very patient with Parliament. We know the timelines and we know our duty.”

But Raila's loyalists John Mbadi and Junet Mohammed are reported to have been under strict instructions from their party leader to ensure the BBI Bill passes as it is.

"Raila called the two and instructed them to ensure the Bill is passed without amendments," said an ODM MP aware of the deliberations.

Siaya Senator James Orengo. [David Njaaga, Standard]

Have no authority

Junet and Mbadi were very consistent that the committee ought not to be given any extension, as their work was to merely listen to the public give their views and cannot introduce any amendments to the report.

Mbadi, who is also the ODM chair said it was shocking that the joint committee is seeking to hire a team of experts yet the Bill is a product of popular initiative.

“I am shocked that this joint committee is requesting extra time to deal with a matter that has already been decided by Kenyans. There is no way this House can even change a comma to this Bill. The committee should stop putting this country in unnecessary disagreements," he faulted.

Reached out for comment, Rarieda MP Otiende Amolo said he cannot make his position known on the matter: “This is a national matter now which we shall be considering among many other related legal issues from tomorrow.”

Efforts to reach Orengo were futile as he did pick calls or respond to text messages. However, Mwangi warns that as designed, MPs have no legal authority to change anything in the BBI report.

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