Four judges have so far recused from a suit seeking to quash the Building Bridges Initiative (BBI) activities, including its reports, consequently delaying its hearing.
The case avers BBI activities were undertaken illegally by an illegal entity.
Already one of the restraining orders sought – blocking any extension of the mandate and tenure of the BBI taskforce – has been overtaken by time. This after judges avoided the case until the term of the team expired last June, five months after filing of the petition to stop its work.
Head of the Public Service, Joseph Kinyua, through a gazette notice in December 2019, extended the term of the 14-member taskforce after it presented its report to President Uhuru Kenyatta and Raila Odinga.
The team began working in May 2018, two months after Uhuru and Raila — the Opposition presidential candidate in 2017 ballot — reached a political truce.
BBI, whose undertakings violated the law, is pushing for constitutional changes – including an expanded the executive – either through a referendum or Parliament.
The suit — which four judges have abstained from, some without reasonable grounds — challenges the plan as unconstitutional.
Activist Okiya Omtatah sued on January 13, 2020, to quash BBI and all its activities. MUHURI and Katiba Institute (KI) joined the case as interested parties.
Omtata filed the suit under a certificate of urgency. Seven days later, justice John Mativo certified the case urgent, and set its mention on January 27, 2020, before his counterpart, Weldon Korir.
Korir, however, recused.
Omtatah, Muhuri, and KI had requested the empanelment of an uneven number of judges to hear the petition. Korir declined.
Korir, at the time, said he had declined to a similar request before, “and I’m unlikely to change my mind”.
In October 2019, Korir had also disqualified himself form another suit that, similarly, challenged BBI legality. Researcher Moraa Gesicho had applied to Korir for court orders to stop the BBI taskforce from submitting its report to President Kenyatta after she filed a suit to declare the team unconstitutional.
Then, Korir failed to stop the BBI team from presenting its report to Uhuru.
When the matter came up for hearing, Gesicho asked Korir to disqualify self, claiming he was biased. Korir did.
“For the interest of justice to all parties in the case, I hereby disqualify myself from the case and direct the file to be placed before the principal judge for further directions on October 23,” Judge Korir ruled on October 17, 2019.
Korir recuses again
And on January 27, 2020, Korir made the same decision in a different suit by Omtatah. Korir referred the file to judge John Mativo for mentioning on January 28, 2020.
Mativo, who pushed the mention to March 2, 2020, set the hearing nine days later – but it did not proceed.
On March 11, 2020, Mativo recused because he had — in a separate suit seven days earlier — issued a judgement that allowed BBI activities to proceed.
“Having heard petition 451 of 2018, which involves substantially similar issues — and having expressed my self substantively in the issues I determined in the said petition — it is only fair, and just that this petition be heard by a different judge. I direct this matter be mentioned before Nyamwea. J on April 29, 2020, for directions,” Mativo ruled.
But the prayers in the petition cited by Mativo are different from Omtatah’s, the court heard.
“The previous matter was filed in 2018, just after the BBI taskforce had been established. And now we are in 2020. A lot of factual circumstances have changed,” Christine Nkonge, the KI and MUHURI lawyer, said.
“The first gazette notice creating BBI, and the second extending its term has slightly changed. There are distinct grounds, and new issues can be sustained for determination by this court.”
On April 29, 2020, justice Pauline Nyamweya like the rest, disqualified self from the case. She placed the file before James Makau for mentioning on July 6, 2020.
But Makau recused on July 13, 2020, and returned the file to judge Korir, who again, disqualified self.
At this time, there was no judge at the Judicial Review and the Constitutional and Human Rights divisions of the High Court who could hear the case. All had avoided the matter.
Korir set the case for mentioning on July 22, 2020, before Principal Judge, Lydia Achode. Achode sent the file to Chief Justice, David Maraga, for a mention on notice.
Secretly selected taskforce
The petition says the President has extended the term of the taskforce so that it could, at least in part, initiate a process of constitutional reform under a popular initiative.
“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 petition says.
Neither Uhuru nor Kinyua has provided information on how the BBI taskforce its two joint secretaries were chosen.
“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.
Parliament did not ratify the work of BBI. The August House is the only institution the Constitution vests with the power to make provision having the force of law in Kenya, the case states.
The petition accuses Uhuru of setting up the team without indicating the legal framework or any provisions of the law he drew his authority.
“The petitioner posits that even if the President had wanted to, he could not have used the Commissions of Inquiry Act (Cap 102) to lawfully institute the taskforce since the Act does not concern instituting a process for amending the Constitution through a popular initiative,” Omtatah says.
No financial accountability
Raila, an advocate of BBI, has said a change in the Constitution must occur through a referendum.
But the suit says the quest like Raila’s appears personal. The Draft Constitution of Kenya (Amendment) Bill 2019, which has almost similar proposals as the BBI report, has not received the State funding and support like the latter.
Omtatah says taskforce is duplicitous.
“It is spending money on functions that are already assigned to other state bodies,” the activist says.
The Constitution and national legislation outline the taskforce’s mandates to various State and government institutions.
Such establishments include Parliament, the Ethics and Anti-Corruption Commission (EACC), the Public Service Commission (PSC), and the Kenya Law Reform Commission. Others are the National Cohesion and Integration Commission NCIC), the Kenya National Commission on Human Rights (KNCHR), the Commission on Administrative Justice (CAJ), and the National Council for Administration of Justice (NCAJ).
The petition noted BBI taskforce is not financially accountable to anyone since its funds were never formally appropriated by Parliament.
Editor’s note: This story is updated to include the transfer of the case file by Principal Judge, Lydia Achode, to Chief Justice, David Maraga.