Law review looms as BBI team gets fresh term

President Uhuru Kenyatta (left) receives the Building Bridges Initiative report from task force chairman Yusuf Haji at State House, Nairobi, in November last year. [File]

President Uhuru Kenyatta has set the stage for a possible referendum by issuing a gazette notice extending the Building Bridges Initiative (BBI) team’s mandate.

The gazette notice issued yesterday has explicitly given the 14-member committee the mandate “to propose statutory or constitutional changes necessary for the implementation of the BBI report”.

Mr Kenyatta has spelt out new terms of reference for the BBI team, which has less than six months to complete its task.

It is supposed to advise the government on the procedure to be followed in implementing the report.

But Uhuru’s BBI gazettement has already been challenged in court. Yesterday, activist Okiya Omtatah filed a case seeking to quash the BBI team’s mandate, arguing that the president and ODM party leader Raila Odinga’s move to constitute the team is illegal.

According to Mr Omtatah, the president has no powers to create a committee to steer amendments to the Constitution through a popular initiative.

Mr Odinga, however, has time and again said a change to the country’s supreme law is inevitable after the completion of the BBI process.

Opinion divided

Opinion has been divided since the BBI report was made public.

Deputy President William Ruto appears to lead a group of politicians who are opposed to the BBI process.

Raila, on the other hand, has started holding forums that are agitating for a referendum. He told such a forum in Kisii on Friday last week that Kenyans should prepare for such a vote mid this year.

Another forum is set for Kakamega this weekend.

Dr Ruto has hit at Raila’s forums, describing them as a waste of public funds.

Ruto has claimed the BBI process has been hijacked by Raila’s ODM, which wants to rejuvenate itself for the 2022 presidential contest.

“What we witnessed in Kisii was not a campaign for the BBI but a revival of ODM’s 2022 presidential strategy,” Ruto said.

“The handshake and BBI debate have brought confusion in the implementation of the government’s Big Four Agenda.”

To change the Constitution through a popular initiative, those who have initiated the process are supposed to collect at least a million signatures.

The signatures are submitted to the Independent Electoral and Boundaries Commission (IEBC) for verification.

After IEBC ascertains the signatures, the Bill proposing the amendment of the Constitution should be submitted to county assemblies.

It must be supported by more than 24 county assemblies before a referendum is called. 

Raila and Siaya Senator James Orengo have insisted that a referendum will take place as early as July this year, as the clock ticks towards the 2022 elections.

Submit report

According to the gazette notice signed by Head of Public Service Joseph Kinyua, the committee will be required to conduct a validation of the BBI report “through consultations with citizens, civil society, faith-based organisations, cultural leaders, the private sector, and experts.”

The committee is expected to submit a comprehensive report to the government by June 30.

Members of the team include Yusuf Haji, Amos Wako, Lawi Imathiu, Maison Leshomo, James Matundura, Rose Moseu, James Matundura, Agnes Kavindu Muthama, Saed Mwaguni, Peter Njenga and Zacheus Okoth.

Others are Adams Oloo, Florence Omose, Morompi ole Ronkei and John Seii, while Martin Kimani and Paul Mwangi remain the joint secretaries.

“After consultations, the steering committee is expected to come up with proposals that will pave the way for the implementation of the BBI report,” the gazette notice states.

“The team is expected to propose administrative, policy, statutory or constitutional changes that may be necessary for the implementation of the recommendations contained in the task force report, taking into account any relevant contributions made during the validation period.”

The committee is also allowed “to form technical working groups as may be required in the achievement of its terms of reference”.

Violated law

Meanwhile, in court papers, Omtatah has insisted that a referendum can only be initiated by a voter until the stage where IEBC ascertains the process is supported by signatures of at least one million voters.

Omtatah says the president violated the Constitution by using State resources to initiate and fund a popular initiative through the BBI team.

“Up until 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 proposals to amend the Constitution by popular initiative,” asserts Omtatah.

In the suit, where Attorney General Kihara Kariuki is listed as a respondent, the activist claims that Uhuru abused his power by sidelining Parliament from the process. 

Omtatah is of the view that extending the BBI team’s mandate is an attack on the Constitution.

“The BBI team is an extra-constitutional and extra-legal entity operating outside both the Constitution and national legislation,” Omtatah argues.

In court papers, Omtatah argues that it is unfair for the president to benefit by using public resources to drive his agenda, while sidelining others with divergent views.

He cites Thirdway Alliance in his case, saying the party was not funded by taxpayers in its quest to change the Constitution.

“The petitioner is aggrieved further that the president‘s decision to unlawfully use State resources for his drive to amend the Constitution through the popular initiative is also discriminatory since other voters seeking to amend the Constitution through the popular initiative don‘t get the same benefits,” Omtatah argues.

“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.”

According to Omtatah, the BBI task force moved around the country but sidelined most people while collecting views. [Additional reporting by Kamau Muthoni]