A petition filed by rights activist Okiya Omtatah challenging the legality of the Building Bridges Initiative (BBI) task force has been transferred to Kakamega after various Nairobi judges recused themselves.
The case, which is one of several legal challenges against the proposed amendment of the Constitution, has so far seen four judges in Nairobi disqualify themselves, forcing the Chief Justice to allocate the file to Justice William Musyoka in Kakamega.
Among the judges who have recused themselves include Justices John Mativo, Weldon Korir, James Makau and Pauline Nyamweya, a move that has delayed hearing of the case which was filed in January this year.
The activist, together with Katiba Institute and Muslim for Human Rights (Muhuri), filed the case challenging the constitutional and legal validity of the Presidential task force on Building Bridges and President Uhuru Kenyatta's decision to extend the team 's term of office.
They want the court to quash all activities conducted by the task force, including its report, on grounds that “they were undertaken illegally by an illegal entity”.
Mr Omtatah argues that amendment of the Constitution by popular initiative can only be initiated by a private citizen or a group of private citizens, but not the government.
He says that the popular initiative of amending the Constitution must be initiated and be funded by a voter or the promoter until the stage is reached where the IEBC takes over, upon ascertaining that the process is supported by signatures of at least one million voters.
"The President opted to violate that constitutional provision by using State resources to initiate and fund his popular initiative through the Presidential Taskforce on Building Bridges to Unity Advisory," he says.
It is his position that the President exercised non-existent powers of initiating a government-sponsored move to amend the Constitution through a popular initiative. He based his arguments on the provisions of Article 257 of the Constitution.
He believes that up until the delivery of the draft Bill and the supporting signatures to the IEBC, there cannot be involvement of any State agency in the preparatory stages of any proposals to amend the Constitution by popular initiative.
According to him, responsibility including any financial liability required to meet all the requirements of Articles 257 (1) - (4), fall on and must be met by the individual or groups of individuals promoting the popular initiative.
Mr Omtatah says the President had the option of using Article 256 of the Constitution which provides for the amendment of the Constitution by parliamentary initiative.
"Given the government has a majority in both the Senate and the National Assembly, with the Leaders of the Majority in two Houses providing the link between Parliament and the Executive, the President's refusal to work with Parliament to achieve whatever desired changes to the Constitution he wishes is a grave abuse of power and the Constitution," says Mr Omtatah.
The petitioner says that in avoiding Parliament, the President's decision led to a waste of State resources to initiate and fund the activities of the BBI team.
He also argues that the President had no power to establish the task force as an exercise of executive function provided for in the Constitution or in national legislation.
"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," says Mr Omtatah.
Discrimination allegation
He is aggrieved that the use of State resources to drive the BBI agenda to amend the Constitution was also discriminatory since other voters seeking to amend the Constitution through the popular initiative do not get the same benefits.
For example, he says no State resources were given to the Thirdway Alliance Kenya’s Punguza Mizigo Campaign which unsuccessfully proposed to amend the Constitution of Kenya under the popular initiative as envisioned in Article 257.
He wants the court to establish whether the President could have used the Commissions of Inquiry Act to establish the Presidential Taskforce.
