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High Court throws out Ekuru Aukot petition to disband BBI team

Wednesday March 4 2020

The High Court has validated President Uhuru Kenyatta’s decision to form the Building Bridges Initiative (BBI) advisory taskforce

The 14-person team was formed following the famous March 9, 2018 handshake between President Kenyatta and ODM leader Raila Odinga

While ruling in a petition that sought to have the taskforce disbanded on grounds that it was a waste of public resources, Justice John Mativo ruled that President Kenyatta exercised Executive powers which cannot be questioned by the court.

The judge said the President is obligated to ensure national unity is realized and that he has powers to appoint to appoint the taskforce to advise him on among other means of realising the constitutional requirement (of ensuring national unity).

“The President cannot be said to have acted ultra vires (beyond the legal power or authority). He acted intra vires (within the legal power or authority) in taking steps to achieve this noble constitutional requirement,” said Justice Mativo.

He added that he had no doubt that the legality constraint was thus adhered to.

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He further said the decision to form the taskforce meets both the proportionality and rationality tests which are core requirements for the decision to pass the principle of legal test.

If viewed objectively, he observed, the President’s decision is rationally related to the legitimate government purpose and a court cannot interfere simply because it disagrees with it or considers the decision to be inappropriate.

“The President’s power to appoint a taskforce is closely related to his broad, policy-formulating function, hence it is an Executive power. It is a mechanism whereby the President can obtain information and advice so as to achieve his desired goal, in this case of promoting and ensuring national unity among other terms of reference for the taskforce,” said Justice Mativo.

He explained that when power flows directly from the constitution it is executive rather than administrative in nature as administrative powers are ordinarily sourced in legislation.

The petitioner, Ekuru Aukot, who is the leader of the Thirdway Alliance Party, failed to demonstrate how the President acted in bad faith and how formation of the taskforce offended the Constitution.

Dr Aukot was of the view that members of the taskforce were not subjected to competitive appointment nor were they vetted.

But the judge ruled that the taskforce is ad hoc in nature and its members are not public officers.

On claims by Dr Aukot that the President failed to subject formation of the taskforce to public participation, the judge said the President is not obligated to subject all his decisions to a public participation exercise.

“I do not think that it was the intention of the constitution that any time the President performs his functions he is required to subject his decision to public participation. Such an interpretation would amount to unnecessarily constraining his constitutional functions,” he ruled.

Justice Mativo backed his decision from a judgement made by the Constitutional court of South Africa where the judges held that the President is freed from adherence to the demands of procedural farness when exercising certain constitutional powers.

“I am not persuaded that there is a reason for me to depart from the said reasoning which to me reflects the correct interpretation of the law. I can only add that it is clear that the Constitutional scheme gives the President a special power to appoint the taskforce,” stated the judge.

On Dr Aukot’s argument that the source of the taskforce’s funding had not been made public, the court ruled that dwelling on such an issue the judge would be performing functions of the Auditor-General.

“This court is being invited to perform the functions of the Auditor-General and f find that there has been an improper use of government funds yet the functions in question falls within the President’s constitutional mandate,” said Justice Mativo.

Dr Aukot wanted the members of the taskforce directed to refund to the national treasury the public monies spent on their operations.

But the court found it had not been established that the function of the taskforce is outside the constitutional mandate of the President and further there was no material placed before court suggesting there has been misuse of public funds.


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