President Uhuru Kenyatta and ODM leader Raila Odinga have picked six lawyers to appeal the High Court ruling that annulled the Building Bridges Initiative (BBI).
The President and the ODM leader have formed a legal team, led by Attorney General Paul Kihara, that they hope will dismantle the ruling by the High Court judges and allow the BBI reggae to stay on.
In the team to resuscitate the BBI are Solicitor General Kennedy Ogeto, former BBI joint secretary Paul Mwangi, members of the BBI committee of experts Prof Ben Sihanya, Prof Kibe Mungai and city lawyer Jackson Awele.
Yesterday, the office of the Attorney General filed a notice of petition, under certificate of urgency, against the ruling of the five-judge bench at the High Court’s Constitutional Court and Human Rights division.
In a document dated May 14, the Solicitor General said the office was dissatisfied with the court’s judgement and that it would appeal.
“Unless this application for stay of execution of the order is heard urgently, there is a real risk,” the document read.
The AG filed a separate application before the Court of Appeal to suspend the High Court’s verdict on BBI, until the hearing and determination of the appeal.
On Friday, BBI secretariat co-chairs Junet Mohamed and Dennis Waweru vowed to appeal the case at the High Court and accused the judges of deliberately acting to plunge the country into a constitutional crisis and chaos through judicial activism.
“As law-abiding leaders, we respect the decision of the court. But we don’t agree with it. Consequently, we are setting up a legal team to look into and appeal the ruling,” said Junet
“With the ruling, some NGOs and politicians have tried to stop Kenyans from having their say on the BBI by way of a referendum. These are beneficiaries of the status quo who are determined to stand on the way of reforms. This is the unholy marriage between Tangatanga, civil society and a section of the Judiciary,” Junet stated.
Mwangi said the judgement against the BBI was not about protecting the Constitution but destroying the country.
“This is not law. This is politics,” he said.
The High Court ruling and the planned appeal have raised debate countrywide. Leaders and legal minds have given different opinions on whether an appeal will be successful.
“As an advocate of the High Court, I must say that I am impressed by the legal analysis and quality of the rulings, especially on the procedural flaws identified therein. On this narrow procedural terrain, I agree with the High Court. But the law does not operate in a vacuum. It should be a lever for moving our society forward. It should no longer be a matter of commas and paragraphs,” said Meru Governor Kiraitu Murungi.
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He added that the High Court lost focus on the BBI’s big picture. “It is my hope and prayer that as we go on appeal, the Court of Appeal will rise above narrow legal and procedural cobwebs, and consider BBI in its broad canvas, in a jurisprudence to advance the fundamental interests of Kenyans,” said Mr Kiraitu.
“Very interesting that the Attorney General seeks stay of the BBI judgment in the High Court, and not the Court of Appeal...that sends a potent and powerful message that AG doesn’t see the matter as one of extreme urgency. #BBIJudgement,” tweeted lawyer Ahmednassir Mohamed.
On Thursday, a five-judge bench dealt a major blow to Uhuru and Raila’s three-year initiative to amend the 2010 Constitution, by declaring it ‘unconstitutional, illegal, null and void.’
In a 500-page judgment that took six hours to deliver, Justices Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka did not only declare the BBI unconstitutional but in a precedent-setting, declared that the President had contravened the Constitution, a decision that could form ground for his impeachment or suit.
“The Building Bridges Initiative is null and void and cannot be subjected to any referendum. The court issues a permanent injunction stopping the electoral commission from proceeding to organise any referendum for the Bill,” ruled the judges.
They gave 22 declarations that scuttled Uhuru and Raila’s initiative borne out of the Handshake on March 9, 2018.
The President is yet to give his opinion on the ruling and has instead kept a studious silence while Raila issued a statement through the ODM party, while on vacation in Watumu, Kilifi County.
“We will calmly and respectfully move to the Court of Appeal to present our case on why we think the High Court did not render the right verdict,” the ODM leader said.