The hearing of the Building Bridges Initiative (BBI) case starts on March 11, 2020 at Milimani High Court.
The suit seeks to declare BBI unconstitutional and stop its task-force from operating because it was constituted illegally.
President Uhuru Kenyatta and former Premier Raila Odinga on March 9, 2018, after the disputed 2017 presidential elections, made a nine-point agenda that led to the formation of the BBI to Unity Advisory Taskforce.
Raila had claimed the Independent Electoral and Boundaries Commission (IEBC) rigged votes in favor of Uhuru, an allegation the election body denied.
Raila’s coalition, National Super Alliance (NASA), challenged the results of the August 2017 presidential ballot at the Supreme Court of Kenya and won. The court ordered a repeat ballot, which NASA boycotted. Uhuru won the repeat vote, but the opposition claimed he was an illegitimate president.
On January 30, 2018, Raila declared himself the “people’s president” at a controversial “swearing-in” ceremony in Nairobi.
Raila later revealed he was in communication with Uhuru to end the impasse that resulted in the March 9, 2018, handshake and BBI. Secretary to the cabinet, Joseph Kinyua, gazetted the BBI task-force on May 24, 2018, “to collect views on how to heal the nation”.
However, on January 13, 2020, activist Okiya Omtatah, filed a case to quash all BBI activities, including its report, because they were undertaken illegally by an illegal entity. MUHURI and Katiba Institute joined the suit as interested parties.
Neither Uhuru, Raila nor Kinyua had 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.
On January 28, 2020, justice John Mativo mentioned the case, after picking it from judge Weldon Korir, who had recused a day earlier, after declining to a request to forward the file to Chief Justice for bench empanelment.
Omatatah, MUHURI and KI wanted an uneven number of judges to determine the case.
Korir said he had objected to a similar prayer in a separate case, which also challenges BBI legality, and he was unlikely to change his mind.
This case also 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.
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 also declined to reveal BBI’s source of funding, and how the task-force 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.