• Thirdway argues that BBI is a waste public resources and wants the court to stop the process.
• The bench will rule whether it will stop the BBI process even as IEBC plans to submit it to the counties next week.
Image: ANDREW KASUKU
A five-judge bench will on Monday next week rule whether to stop the 47 county assemblies from debating the BBI Bill pending the hearing of a case challenging it.
In the case, Thirdway Alliance party, which has opposed the referendum, wants the court to bar IEBC from submitting it the assemblies for consideration and approval.
Justices Joel Ngugi, George Odunga, Jairus Ngaah, Janet Mulwa and Enock Mwita will deliver the ruling on February 8, on the day the electoral commission is expected to formally deliver the Constitution of Kenya amendment Bill 2020 to the county assemblies.
Through lawyer Elias Mutuma, Thirdway Alliance argues that if the process is allowed to proceed, Kenyans will lose billions of shillings.
“Kenyans will risk losing billions of money in a government-imposed constitutional change in blatant violation of the sovereign power of the people of Kenya and negate the gains achieved so far through implementation of the Constitution of Kenya 2010,” Mutuma says.
The party argues that with the Bill heading to the assemblies for debate, the questions of law will remain an academic exercise, if the court will not stop the process.
According to court records, Thirdway says the state will spend public money for the BBI at the expense of the taxpayer yet the activities are unconstitutional and a waste of public money.
“The said questions of law will remain an academic exercise since by the time the court sits to hear the petition herein in March 2021, the said county assemblies, the National Assembly and Senate shall have debated the said bill thus rendering the petition herein moot and nugatory,” court documents read.
The party further claims that the county assemblies, the National Assembly and the Senate are all political organs that enjoy support from the President and the Executive and are thus likely to be whipped to approve the BBI Bill.
“They are likely to be whipped and marshalled to easily approve the Constitution of Kenya (Amendment) Bill 2020 within the shortest period of time so that the entire amendment process is likely to be completed before this court hears and makes a determination of the petition herein,” court documents say.
Mutuma says it’s in the interest of justice the activities around BBI be put on hold pending the hearing and determination of their case.
This, they say, is because continued operations will end up illegally utilising public funds. which cannot be recovered should the court declare the initiative and its operations unconstitutional.
They also argue that the Steering Committee of Building Bridges and the BBI National Secretariat operations are funded using taxpayers' money in contravention to the principles of the public finance as enshrined under Article 201 of the Constitution.