• The case poses a threat to a project which enjoys the support of the President and ODM leader Raila Odinga.
• If the court grants Omtatah his wishes, the BBI team will be starved of any public funding to execute its mandate.
President Uhuru Kenyatta’s Building Bridges Initiative team and its report have been challenged in court by activist Okiya Omtatah.
Omtatah wants the courts to quash the work done by the BBI task force and nullify the gazette notice appointing the team because it is illegal.
The case poses a threat to a project which enjoys the support of the President and ODM leader Raila Odinga.
If the court grants Omtatah his wishes, the BBI team will be starved of any public funding to execute its mandate.
Omtatah says in the case certified urgent that since the President extended the mandate and term of the team on December 12 last year, politicians have been illegally traversing the country campaigning for BBI.
According to the BBI terms of reference, the team is required to present its comprehensive advice not later than 12 months from the date of its official launch.
The team was gazetted on May 31, 2018. The BBI report was published on October 23 last year and presented to the President on November 26.
Omtatah says the team ceased to exist 12 months after its official launch.
Similarly, he says, unless the President extended the task force's term before its expiry, it was no longer open to an extension.
“Under its terms of reference, the task force stood dissolved, incapable of being resurrected and given a new lease of life after the expiration date of the twelve months term after its official launch,” Omtatah says.
In his suit papers, Omtatah questions the constitutionality of setting up a task force with powers the law assigns to other public entities.
Article 135 of the Constitution provides that a decision of the President in the performance of any function of the President under this Constitution shall be in writing and shall bear the seal and signature of the President.
However, the gazette notice advising about the appointment and the terms of reference of the task force was issued by Joseph Kinyua, Head of the Public Service.
Omtatah further contends that even with the approval of Parliament through legislation, Uhuru could not, under the constitution, come up with the Building Bridges team to undertake amendments to the constitution through the popular initiative.
The President or any other public officer, Omtatah says, cannot use public resources to start a popular initiative for amending the Constitution yet when a voter wants to do the same she is required to rely on her resources. He believes these amounts to discrimination.
He argues that by adopting the Constitution of Kenya in 2010, Kenyans resolved to forever get rid of an imperial president who, like a monarch, could invoke royal prerogative and conduct State and public affairs as if they were private, domestic matters.
“The unconstitutional BBI is totally unlike the "handshake" which is an alternative dispute resolution mechanism anchored on Article 159(2)(c). Hence, as far as I am concerned BBI is anathema to the Constitution of Kenya, 2010 and the courts should quash the rogue process,” he said.
Most importantly, the BBI task force on building bridges is invalid because even its members were not selected through a competitive, merit-based and inclusive process. It was also not subjected to public participation.
And as a result, he wants the BBI team stopped from continuing with its work.
He lists the National Executive, the Treasury, the BBI task force and the Attorney General as first to fourth respondents respectively.
Also listed in his suit papers are the Katiba Institute and Muslim for Human Rights (Muhuri) as interested parties.