• Last week, a five-judge bench barred the IEBC from moving the Constitution of Kenya (Amendment) Bill, 2020, to a referendum until the case is heard and determined.
• Thirdway to withdraw case, smoothing the way for BBI.
Image: COURTESY
The Building Bridges Initiative has received a major boost after the Thirdway Alliance moved to withdraw a court case that had threatened to scuttle the process.
Last week, a five-judge bench barred the IEBC from subjecting the Constitution of Kenya (Amendment) Bill, 2020, to a referendum until the case is heard and determined.
However, Thirdway Alliance, which secured the orders, has now opted to withdraw the case. Details emerged as six of seven county assemblies that have voted on the proposed constitutional review gave it a clean bill of health.
On Tuesday, Busia, West Pokot and Trans Nzoia unanimously voted to pass the bill. Counties that had already passed it are Siaya, Kisumu and Homa Bay.
In a letter signed by secretary-general Fredrick Okango, chairman Miruru Waweru and deputy party leader Angela Mwikali, the party says the case is no longer sustainable.
“Although we have sought your advice and you have instructed that we await the end result of the case, we feel the case is no longer sustainable as very important prayers have been overtaken by events. We hereby instruct you to withdraw the matter immediately,” the letter reads.
Thirdway Alliance was the only party that had secured orders temporarily stopping a referendum. The case has seven petitioners.
The party has written to its lawyer, Elias Mutuma, to withdraw the case. Mutuma told the Star he had yet to receive the withdrawal letter from his clients. Other petitioners also said they had yet to receive it. This means the letter has yet to be filed in court before the five judges to formally withdraw the case.
The move left other petitioners surprised. On Twitter, Law Society of Kenya president Nelson Havi—one of the petitioners—castigated the Thirdway Alliance officials, calling them conmen and con woman.
“These two conmen and con woman hiding under the umbrella of Thirdway Alliance should never be allowed to file any constitutional petition in our courts,” he tweeted.
Havi cautioned litigants against allowing the party to join their petitions as interested parties.
In their ruling, the five judges said they acted in the public interest to grant appropriate conservatory orders.
“Rushing the Constitution through county assemblies and eventually through Parliament does not inoculate the resultant constitutional amendment from the possibility that it could be declared invalid,” they said.
They further said even as they consider the bill in the face of the petitions before them, they must be aware that the court can declare the Constitution of Kenya (Amendment) Bill, 2020, 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 this petitions the court answers some of the questions presented by the petitioners,” the court ruled.