- Justices Joel Ngugi, George Odunga,Jarius Ngaah,Janet Mulwa and Chacha Mwita cautioned Parliament and the county assemblies against rushing the BBI process.
- Thirdway argues the BBI process is funded by taxpayers’ money and the state is likely to spend public money on activities that are unconstitutional.
Image: PSCU
The Building Bridges Initiative suffered a major blow on Monday after the High Court barred IEBC from presenting the Constitution of Kenya (Amendment) Bill 2020 to the county assemblies for deliberation.
In a ruling delivered by a five-judge bench, the Independent Electoral and Boundaries Commission was temporarily stopped from submitting the Bill to the counties pending hearing and determination of seven petitions filed challenging the process.
“We believe that it is in the public interest that appropriate conservatory orders be granted. Consequently, we hereby order that a conservatory order be and is hereby issued restraining IEBC from facilitating and subjecting the Constitution Amendment Bill 2020 to a referendum," the order reads.
The court further barred the commission from taking any other action to advance the Bill pending the hearing and determination of the consolidated petitions.
The electoral commission was expected to roll out the process of submitting the Bill to the counties according to their schedule.
Justices Joel Ngugi, George Odunga, Jarius Ngaah, Janet Mulwa and Chacha Mwita further cautioned Parliament and the county assemblies from rushing the BBI process.
“Rushing the Bill through county assemblies and eventually through Parliament does not inoculate the resultant constitutional amendment from the possibility that it could be declared invalid,” the judges ruled.
The judges further held that even as they consider the Bill in the face of the petitions before court, they must be aware that the court can declare the amendment Bill invalid upon conclusion of the case.
“They must be aware that this court has the requisite jurisdiction and obligation to declare such actions unconstitutional and therefore invalid if upon completion of these petitions the court answers some or the question presented by the petitioners,” the court ruled.
The court agreed with Thirdway Alliance that if the Bill is subjected to a referendum, the likely amount to be spent in the said process will run into billions of shillings and if the court finds the process unconstitutional, the country’s scarce financial resources would have been unnecessarily expended.
“Apart from that, if the Constitution (Amendment) Bill were to be passed in a referendum the substratum of these petitions would be substantially altered and the orders that this court might make, based on the instant petitions, might well be merely academic,” the court ruled.
Thirdway had argued that the BBI process is funded by taxpayers’ money and the state is likely to spend public money at the expense of the taxpayer yet their activities are unconstitutional and a waste of public money.
However, the judges said there was no evidence at this stage that the activities of Parliament and the county assemblies in this process are likely to entail the utilisation of huge amounts of money that would be outside routine legislative processes.
In the case, Thirdway Alliance made an application last month seeking to stop county assemblies from deliberating on the Constitution of Kenya (Amendment) Bill 2020.
Through lawyer Elias Mutuma, Thirdway Alliance argued that if the process is allowed to go on 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 said.