Why Raila is Opposing International Experts Joining BBI Case

Former President Uhuru Kenyatta and former Prime Minister Raila Odinga officially open the 48km Ngong-Kiserian-Isinya and the 43km Kajiado-Imaroro roads in Kajiado County in May 2021.

Orange Democratic Movement (ODM) leader Raila Odinga and the Building Bridges Initiative (BBI) secretariat, have urged the Supreme Court to reject an application by five international law experts to join the BBI appeal. 

Raila and the BBI secretariat argued that the five professors' application was late and not only meant to derail the BBI case by prolonging the hearing, but also had undisclosed ulterior motives.  

The five professors are Richard Albert (US), Yaniv Roznai (Israel), Rosalind Dixon (Australia), David E. Landau (US) and Gautam Bhatia (India).

BBI lawyer, Paul Mwangi, asked the Supreme Court under Chief Justice Martha Koome not to admit the five who wanted to enjoin the case as amici curiae - friends of the court. 

From left: Undated photos of Professor Yaniv Roznai (Israel), CJ Martha Koome (Kenya) and Professor Richard Albert (USA)

“An amicus brief ought to be made timeously and presented within a reasonable time. Dilatory filing of such briefs tends to compromise their essence as well as the terms of the Constitution’s call for resolution of disputes without undue delay.

“They have all along been aware of the proceedings from the High Court and never made any attempts to participate or be joined and hence it is a mere afterthought for them to make the application at this stage in an attempt to water down and drag the hearing of the petition of appeal herein,” an excerpt of the court papers read. 

The BBI team added that the five professors would repeat the same argument presented in court by anti-BBI teams, as they had not demonstrated how their submissions would assist the Supreme Court. 

The court directed that it would make a ruling on a scheduled date but urged parties that had not responded to the application for joinder to do so by Friday, October 22.

US-based Prof Richard Albert, while applying to join the BBI case, argued that the BBI bill should have been argued as a constitutional dismemberment rather than a constitutional amendment in the junior courts that declared the initiative null and void

Albert's book, Constitutional Amendments: Making, Breaking and Changing Constitutions, was cited during the BBI arguments at the High Court and Court of Appeal by anti-BBI proponents. 

The 5-judge bench which declared BBI as null and void, on Thursday, May 13, 2021