Party files suit to block debate on BBI Bill

The Thirdway Alliance Party has filed a suit seeking to block county assemblies from debating the Building Bridges Initiative (BBI) constitutional amendment Bill.

In an application that was yesterday certified urgent by a five-judge bench, the political outfit wants the court to bar the electoral agency from submitting the Constitution (Amendment) Bill, 2020 to the county assemblies and Parliament for consideration and approval.

Through lawyer Elias Mutuma, Thirdway Alliance argues that if court fails issue an order suspending the debate the questions of law related to the Bill will remain an academic exercise.

This is because the Bill is now heading to the County Assemblies for consideration and approval and later to the National assembly and Senate.

"By the time the court sits to hear the petition in March 2021 the County Assemblies, National assembly and Senate shall have debated the said bill thus rendering the Petition moot and nugatory," said Mr Mutuma.

He added that the proponents of the constitutional changes and the Independent Electoral and Boundaries Commission (IEBC) have been moving with speed towards the proposed refferedum and the petition by Thirdway Alliance party is likely to be affected.

Hearing of the petition is slated to be on March 17, 18 and 19, 2021 by a five judge bench presided by justice Prof Joel Ngugi. Other judges in the bench are justices George Odunga, Jairus Ngaah, Janet Mulwa and Enock Mwita.

Two of the legal questions that Thirdway Alliance has sought a determination in the petition, is whether the County Assemblies, National assembly and Senate have the legal framework to proceed with their respective roles towards the achievement of the constitution amendment process.

The other question is whether by under provisions of Article 257 (5) and (7 ) of the Constitution the term “consideration” and “approve” provides room to County Assemblies and Parliament to alter and or improve the contents of the bill so as to incorporate divergent views raised through public participation as is always the case in a proper legislative process.

Lawyer Mutuma said the activities of the Building Bridges Initiative (BBI) are funded using tax payers money, in contravention to the principles of public Finance as enshrined under Article 201 of the constitution.

"They (proponents of the Constitutional Ammendment Bill) are on top gear on their operations and they are likely to complete their operations before the petition is heard and determined, spend more of the public money at the expense of the taxpayer yet their said activities are unconstitutional and a waste of public money," said Mr Mutuma.

He argued that his client is aggrieved by the manner in which 'BBI- a government sanctioned initiative -has become a vehicle for constitutional amendment in blatant violation of Articles 256 and 257 of the Constitution'.

According to him, the County Assemblies, National Assembly and senate are all political organs who enjoy support from the President and the executive arm of Government and they are likely to be whipped and or marshalled to easily approve the bill within the shortest period of time.

This means the entire amendment process is likely to be completed before the court hears and makes a determination of the petition.

"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," said the lawyer. He argued that the utilized funds cannot be recovered should the court declare the said initiative and its operations to be unconstitutional.

The judges will rule on the application on Monday February 8, 2020 and later delve into hearing the main petition.