Civic action: Group of activists who belled Uhuru’s BBI cat

Depending on the side of the political divide, they are either vanguards of democracy or spoilers acting on behalf of powerful sponsors. 

But the men and women who presented the eight petitions to the High Court that led to the Building Bridges Initiative (BBI) being declared unconstitutional will go on record as having derailed the State, even if temporarily.

Seven of the eight petitions filed against President Uhuru Kenyatta and Raila Odinga’s plan for a referendum had one argument in common – BBI was not a public initiative.

The only distinct petition, since it was not opposed to the referendum, was filed by Kenya National Union of Nurses (Knun). It wanted the court to compel the BBI Steering Committee and the Attorney-General to publish afresh the Constitution (Amendment) Bill, including the union’s proposal to create an Independent Health Service Commission.

But the court disallowed the prayer saying the fact that an entity is required to take into account public views does not mean that those views must find their way into the final decision.

17 questions

“Even if we were to assume that representations were made by the BBI Taskforce (to the Steering Committee) as alleged, and even if the BBI Steering Committee was a lawful entity, it has not been demonstrated that the BBI Steering Committee was bound by such representations,” said the judges. 

After considering all the prayers in the eight petitions, the written briefs and arguments, the five-judge bench found the petitions raised 17 questions. 

Most of the petitioners are ordinary Kenyans, lawyers and human rights activists. Only one political party, Thirdway Alliance, opposed the proposed amendments to the constitution. 

Others were civil rights groups such as Kenya National Commission on Human Rights, Kituo Cha Sheria and Mombasa-based Muslim for Human Rights (Muhuri), which joined the case as interested parties in support of the petitions.  Here, we take a closer look at some of them.

Isaac Aluochier

Among the 10 reliefs Mr Aluochier sought in his Petition No. E426 of 2020 were the two stand-out orders the High Court granted. One, that civil court proceedings can be instituted against the President or a person performing the functions of the office of President during his or her tenure of office if they act beyond the powers granted to them by the constitution.

Two, that President Uhuru Kenyatta contravened Chapter 6 of the Constitution, specifically Article 73(1)(a)(i), by claiming authority to initiate and promote a constitutional change process. 

“It is an obligation of every Kenyan under Article 3(1) of the constitution, which requires us to respect, uphold and defend the constitution. Knowing what the constitution says, and seeing very clearly that the process of the BBI was unconstitutional, I was simply fulfilling my constitutional duty. That was my motivation,” Mr Aluochier told the Sunday Nation.

A member of the Chartered Institute of Arbitrators, Mr Aluochier has been involved in numerous public-spirited litigation cases and says he also supports public defenders like Mr Okiya Omtatah.

“Basically I stand for the rule of law and all of us should do so. I am just one among the 47 million Kenyans who simply did what the law asked each of us to do,” he said.

When he is not fighting those who want to desecrate the constitution, he says he is a private person who spends his time running his business. He holds a first degree in quantity survey and a second one in project management.

Linda Katiba – Dr David Ndii, Wanjiru Gikonyo, Ikal Angelei and Jerotich Seii

They described themselves as “civic-minded Kenyans who have brought the petition in public interest”. In Petition No. E282 of 2020, they brought up the argument on the “basic structure of the constitution”, and “eternity clauses”. 

“The Linda Katiba campaign is a call to all Kenyans to stand up for the rights that we fought hard to enshrine. Power belongs to the people. Power is conferred by the people. Power must be used only for the benefit of the people,” they said.

Dr Ndii  is an economist, an avid social media user and writer. In the 2017 elections, he was the chief strategist for opposition coalition NASA. He left after the March 2018 Handshake and has been a vocal opponent of the BBI.

Wanjiru Gikonyo is the national coordinator of The Institute for Social Accountability (TISA).

Jerotich Seii comes from a prominent political family. She was at the forefront of the campaign against graft at Kenya Power and was a party to the class-action suit against the power distributor. 

Ikal Angelei is an environmental advocate and a prominent voice to have the government come clean on the production sharing agreement it signed with Tullow in Turkana. She was awarded the Goldman Environmental Prize in 2012. She has also taken up governance advocacy.

Critics of Linda Katiba, however, say they are not acting on their own but for Deputy President William Ruto who has been opposed to the BBI. Dr Ndii has lately emerged as an adviser to Dr Ruto and attended the latter’s meeting with the political leaders from Mount Kenya.

Khelef Khalifa, Muhuri

Mr Khalifa, 73, a resident of Mombasa, petitioned the court on behalf of Muslims for Human Rights (Muhuri). He is the outfit’s chairman.

He has been involved in activism since 1992. In the last decade, he has been proactively filing suits against various government actions. In 2019, he led protests against mandatory standard gauge railway (SGR) haulage and privatisation of Mombasa Port. 

This time, he says, he went to court because he would wish to live to see a violence-free General Election.

According to Mr Khalifa, Independent Electoral and Boundaries Commission (IEBC) plays a core role. Partly, this is what motivated him to ask the court to ensure IEBC is properly constituted and acts within the law.  “The ruling has vindicated our cause,” Mr Khalifa said. 

However, he told the Sunday Nation: “Our fear is that they have a way. Highly likely they might bulldoze their way as they have always done with our previous petitions despite the court ruling in our favour.”

In the Thursday ruling, the High Court declared that the “IEBC does not have the quorum stipulated by Section 8 of the IEBC Act” and therefore cannot conduct business.

Further, the court ordered that the Constitution (Amendment) Bill, 2020 cannot be subjected to a referendum before the IEBC carries out a voter registration exercise. This was among his prayers to the court. 

Clarence Mweresa aka Mwalimu, 254Hope

Mr Mweresa is a trained medical doctor who graduated from the University of Nairobi in 2016.
He co-founded 254Hope with with Dr William Muriuki, who is also a practising medical doctor. 

254Hope was birthed in 2016 but actualised in 2020. And inasmuch as the organisation is not formally registered, it has about 100 members from different professions, including lawyers, medical doctors and engineers brought together by a common course – fighting for economic justice and good governance in Kenya.

In its submission, 254Hope told the court that the government cannot use the popular initiative mechanism to change the constitution. The group was of the opinion that only Parliament was well-placed to effect the desired changes.

The High Court on Thursday declared that the President does not have authority under the Constitution to initiate changes to the Constitution, and that a constitutional amendment can only be initiated by Parliament through a Parliamentary initiative under Article 256 or through a popular initiative under Article 257 of the Constitution.

What is next for the group?

“We’re meeting tomorrow to deliberate on that,” Mr Mweresa told the Sunday Nation. “Definitely, we’re regrouping, waiting for the government to appeal. We will meet appellants in the Court of Appeal.”

Justus Juma – Justice Freedom Party

Justus Juma is a Nairobi based human rights activist and politician who unsuccessfully vied for the presidency in 2017.

In his petition, he told the court that the proposal to create 70 constituencies in the BBI was illegal.  He said provisions in the Bill amount to a violation of Article 89 of the Constitution, by usurping the powers and roles assigned to IEBC by the same Constitution.

The proposal to create the constituencies, he said, was also in violation of Article 10 by taking away the right to public participation, an indispensable imperative for boundary delimitation.

Mr Juma is the party leader of the Justice Freedom Party.

Kituo cha Sheria

Currently headed by lawyer Annette Mbogoh (pictured), Kituo Cha Sheria is a human rights organisation founded in 1973 to provide free legal services to the majority poor and vulnerable during the fight for constitutional change and multipartism.

It adopted the submissions of the Kenya Human Rights Commission (KHRC) in supporting the petition filed by Linda Katiba on the applicability of the doctrine of “basic structure of a constitution” in Kenya.

The organisation was founded under the leadership of former Chief Justice Willy Mutunga among others, with the intention of increasing the representation of the marginalised in legal disputes.

Some of its other prominent founders include advocates Steve Adere and Murtaza Jaffer as well as retired judges JV Juma and Mary Ang’ awa.

Miruru Waweru

He is a certified public accountant and an economist by profession. He is also the national chairman of the Thirdway Alliance Party. 

He believes that issue-based politics are a necessary ingredient for economic prosperity. He filed the case against the referendum on behalf of the party. 

It is not the first time the Egerton University graduate is being involved in public interest cases against the Jubilee administration. He admits his party is litigious, but states that its battles in court are based on one of its six pillars: to defend the constitution and the rule of law. 

In 2013, he was one of the contestants for the Dagorreti South parliamentary seat but lost to Dennis Waweru. 

In the case against the BBI referendum, the court upheld all the party’s arguments, including that the county assemblies, National Assembly and Senate had no legal framework to proceed with their respective roles in the constitution amendment process. 

The party was one of the parties in a consolidated petition on retired Chief Justice David Maraga’s advisory to President Kenyatta to dissolve Parliament over the gender parity law.  

Currently, Mr Waweru is involved in a consolidated petition that is challenging the nomination and swearing in of Ms Anne Kananu as Nairobi’s deputy governor. 

Additional reporting by Walter Menya, Daniel Ogetta, Joseph Wangui and Silas Apollo