Aukot fails to stop 'BBI reggae' as court dismisses case

Thirdway Alliance Kenya Party leader Dr Ekuru Aukot. His party filed a petition to stop declare BBI task-force illegal. [File, Standard]

A Nairobi High Court on Wednesday declined to declare the task-force in charge of Building Bridges Initiative(BBI) illegal.

 While dismissing a case filed by Dr Ekuru Aukot’s Thirdway Alliance, Justice John Mativo ruled that President Uhuru Kenyatta was within his powers to choose a team that would help steer the country towards good governance, promotion of devolution and accountability.

 Aukot’s party had argued that the appointment of the Yusuf Haji- led team needed public participation and scrutiny of the members.

However, the judge ruled that the team is ad hoc in nature hence did not require the public’s input adding that its members ought not to be vetted before the appointment.

 The judge also declined to find that the State had misused public funds in the BBI project. He observed that courts would not intrude on the work of the auditor general, who ought to probe use of taxpayers’ money by public entities.

 “I find and hold that this case fails in its entirety and dismiss the same with no orders as to cost,” declared Justice Mativo.

In the case, Aukot’s party had argued that BBI was a misuse of public funds as the agendas it seeks to achieve override those entrusted to the constitutional bodies.

It also argued that the team stemmed from a private deal between the president and Orange Democratic Movement (ODM) leader Raila Odinga.  Justice Mativo heard that the handshake between the two national leaders was a private affair whose agenda and resolutions are just known by the two and their close allies.

The 14-member taskforce term was extended in January this year.

 Activist Okiya Omtatah had also challenged BBI’s team mandate arguing that the handshake initiative is illegal and a waste of Government’s money.

 According to Okiya, the President has no powers to create or constitute a body to steer amendments to the Constitution through popular initiative.

He argued that Constitution clearly stipulates that changes must be initiated and be funded by a voter until the stage where Independent Electoral and Boundaries Commission (IEBC) takes over, upon ascertaining that the process is supported by signatures of at least one million voters.

Court documents filed accused the President of opting to violate that Constitutional provision by using State resources to initiate and fund his popular Initiative through the BBI team.

“Up untill the delivery of the draft Bill and the supporting signatures to the IEBC, there cannot be any involvement of any state agency in the preparatory stages of any proposals to amend the Constitution by popular initiative,” argues Omtatah.

In the case where Attorney General Kihara Kariuki is listed as a respondent, the activist claimed that President Uhuru has abused his powers by sidelining Parliament from the process. Okiya is of the view that extending the BBI’s task force mandate is an attack on the Constitution.

“The BBI is an extra-constitutional and extra-legal entity operating outside both the Constitution and national legislation, including by using public funds and other resources without any basis in law, and without accounting for the same,” he added.

According to Okiya, the current structure of the Constitution has taken care of concerns raised by Kenyans. He argues that the task force moved around the country but sidelined others.

“The task force set up a secretariat, toured the country, and it sought and received submissions from selected groups of Kenyans. It is currently not known how it was decided from whom, among all the people of Kenya, individually and collectively, would be given the opportunity to make submissions to the task force,” he claimed.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021