The hearing of the Building Bridges Initiative case starts on March 11 at Milimani High Court.
The suit seeks to declare BBI unconstitutional and stop its taskforce from operating “because it was constituted illegally”.
Justice John Mativo mentioned the case today.
He picked the matter from Judge Weldon Korir, who recused Monday after declining to a request to forward the case’s file to Chief Justice for bench empanelment.
Petitioner Okiya Omatatah and interested parties — Muhuri and Katiba Institute (KI) — wanted an uneven number of judges to determine the case.
Korir claimed to have objected to a similar prayer in a separate case, which also challenges BBI legality, and he was unlikely to change his mind.
Omtatah filed the case on January 13. Muhuri and Katiba Institute (KI) joined as interested parties.
President Uhuru Kenyatta and former Premier Raila Odinga on March 9, 2018, made a nine-point agenda, after the disputed 2017 elections. It led to the formation of the BBI to Unity Advisory Taskforce.
Secretary to the cabinet, Joseph Kinyua, gazetted the team on May 24, 2018.
Neither Uhuru, Raila nor Kinyua has provided information on how they chose the team and its two joint secretaries.
“The process of choosing the members was secretive, corrupt and not subjected to the thresholds set in the Constitution and legislation for appointment to the public office,” the petition says.
This case questions State’s push for a referendum, which, according to the Constitution, should only be initiated by a voter – supported by at least one million signatures.
Recently, Uhuru extended the taskforce term, raising objections from the suit.
“The President has extended the term of the taskforce so that it could, at least in part, initiate a process of constitutional reform under Article 257 of the Constitution – the popular initiative process,” the case says.
“The Constitution provides that a popular initiative should be initiated by a voter. It is not a process intended to be initiated by the State. [If the State initiates it], the process becomes inherently unfair and discriminatory since other voters seeking to initiate popular initiatives do not benefit from the largesse of the State to do so.”
The State has closely guarded BBI cost, contrary to the initiative’s emphasis on “transparency, openness, and accountability by government and its officers”.
The State has declined to reveal BBI’s source of funding, and how the taskforce spent the money.
Kinyua is yet to respond to an access to information request – regarding BBI cost and legality – which Muhuri, KI, and International Commission of Jurists made in December.