Havi further said that BBI is an initiative powered by President Uhuru Kenyatta and cannot be a popular initiative.
All the other petitioners asked the court to quash the BBI process because it was against the law.
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Eight petitioners in a case challenging BBI on Wednesday put up a spirited fight before a five-judge bench in a bid to nullify the Constitution of Kenya Amendment Bill, 2020.
The petitioners were each given time to submit reasons why the court should quash BBI.
In a virtual proceeding that took more than six hours, the petitioners each took turns asking the judges to declare BBI unconstitutional.
The petitioners in the case include economist David Ndii, Kenya National Union of Nurses, Thirdway Alliance, 254Hope, Justus Juma, Moraa Omoke, Isaac Aluochier and Muhuri.
LSK President Nelson Havi, representing Ndii and his co-petitioners, told the judges that they have unlimited power to invalidate a process that seeks to alter the basic structure of the constitution.
Havi further said that BBI is an initiative powered by President Uhuru Kenyatta and cannot be a popular initiative.
He also said the process is intended to domicile the Attorney General and part of the Cabinet and the goal is to confuse and separate the roles of the three organs.
“I ask the court to make declarations as sought, grant and invalidate the BBI and quash it, those are the requests of the petitioners,” Havi said.
The National Union of Nurses on their part said they wrote a report to the BBI secretariat but it was never considered.
They argued that the BBI does not reflect the will of the people and the appropriate solution is to declare it unconstitutional or compel the secretariat to include their proposal in the document.
“The legitimate expectation of the doctors to have independent commission was shuttered by selfish people who are keen to ensure that they are not afforded an Equal treatment of the law,” the court heard.
All the other petitioners asked the court to quash the BBI process because it was against the law.
The court also heard that the process was done hurriedly thereby locking out the public from the amendment of the constitution.
“Within 12 hours of publishing the amendment, they quickly started collecting signatures, they hurriedly took the bill to county assembly without verification of the signatures,” they argued.
The petitioners accused the secretariat of working past the deadline and passing the bill without giving the public an opportunity to participate.
They also told court to look at the issue of public funds that will used in the whole BBI process.
“We have an elected official working with a private citizen and with use of public funds. This use of public funds needs to be addressed,” they said.
In their view, the state should not be allowed to use public funds instead the two principals should use their own money.
It was their argument that Parliament is unconstitutional because of former CJ David Maraga’s advice to the president to dissolve it.
They further argues that looking at the Bill, there is a mix of provisions that can be amended by a parliamentary initiative and popular initiative.
The hearing resumes on Thursday when the amicus curie (friend of the court ) and the interested parties supporting the petitioners will make their submissions before the state responds to them.