Amid his oddly heavy silence, ODM leader Raila Odinga is optimistic that the halted BBI juggernaut will thunder through the judicial hurdles.
Known for his vocal character on Twitter, Mr Odinga has – for the last two days – shied away from the platform that he fondly uses to communicate to his slightly-over-three million followers.
Journalists, his die-hard rooters, political foes, among others, have been refreshing the tab on his Twitter profile to know what the “enigma” is thinking after the courts rendered the BBI vehicle motionless, close to its lifespan end.
Unlike many, including Deputy President William Ruto who believe the BBI push is on its deathbed, Raila Odinga is bullish that the Constitutional reform vehicle is unstoppable.
“Nobody can stop reggae,” he told The Standard on Saturday, May 15, when asked to comment on the court’s shock verdict.
Mr Odinga, at the early stages of BBI incubation, nicknamed the initiative “reggae”, a phrase borrowed from South African reggae music legend, Lucky Philip Dube, who, in 1989, released the “Reggae Strong” song, emphasising in the composition that reggae music was deeply-rooted in the society, including in jail, bedroom or bathroom.
Dube, who died aged 43 on October 17, 2007, sang that people could “change the style or rhythm of playing reggae”, but could “never ever change the message”.
Mr Odinga now says the BBI reggae “message” is home and dry. Its “rhythm” can be changed (delayed), but its cause cannot be stopped, whatsoever.
Asked on how he wishes to overturn the High Court’s May 13 ruling on BBI, Mr Odinga said he would “address that in due course”.
The ODM supremo spoke to The Standard on phone from Watamu in Malindi, Kilifi County, where he was having lunch with, among others, COTU boss Francis Atwoli and Jubilee Party Vice-Chairperson David Murathe.
Coastal counties’ governors, Ali Hassan Joho (Mombasa) and Amason Kingi (Kilifi) were also present. The lunch meeting was also attended by Woman Representatives for Lamu County; Ruweida Mohamed, and Kilifi County; Gertrude Mbeyu.
This comes as the BBI Secretariat, co-chaired by ODM’s Director of Elections Junet Mohamed, prepares to file an appeal on Monday, May 17 against the High Court’s May 13 ruling, which stopped BBI in its tracks.
“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 on Friday, May 14.
Besides the BBI Secretariat, another wing, led by Attorney-General Kihara Kariuki, has also communicated a notice of appeal.
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Kariuki says 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. Lack of public participation was one of the grounds the court relied on to benumb the BBI push.
Lawyer-cum-ODM Secretary-General, Edwin Sifuna, told The Standard ODM would apply to be enjoined in the petition, which would be filed by the BBI Secretariat.
Night of shock
On Thursday night, May 13, the High Court declared the BBI process illegal, null and void, catching many pro-BBI proponents by shock.
A 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.
Even as the outcome continues to draw mixed reactions, a section of lawyers, including Bobby Mkangi, Charles Kanjama, Steve Ogolla and Elias Mutuma, believe the petitioners would have a low chance of success at the Court of Appeal.
According to the four, the High Court’s ruling was watertight.
However, another section, led by Prof. Ben Sihanya and Tom Joseph Kajwang, believe the lower court’s ruling would be overturned at the appellate court.