A five-judge bench has stopped the Constitutional Amendment Bill, 2020, from coming into force—even if it’s assented to by the President—as cases challenging it waits for a determination.
The judges are: Joel Ngugi, George Odunga, Jairus Ngaah, Chacha Mwita and Teresia Matheka.
The order, issued March 26, followed another on February 8 blocking the Independent Electoral and Boundaries (IEBC) from subjecting the BBI Bill to a referendum.
The virtual hearing of the consolidated petitions was March 17-19.
MUHURI is part of these cases after it filed its suit in January, questioning the BBI signature verification exercise.
The bench’s ruling followed a notice of motion by the Thirdway Alliance Party of Kenya, Miruru Waweru, and Angella Mwikali. The trio said by the time the court issued interim orders against IEBC, 47 county assemblies had yet to discuss the bill.
But over 40 assemblies have since approved the bill.
“That in the prevailing political climate, there is a high likelihood that the said bill will be approved and forwarded to the President for assent and publication by dint of Article 256 (3) before the judgment of the consolidated petitions are delivered,” the three said in the motion.
There is a real threat that the President will assent to the bill if he forms an opinion that the amendments don’t relate to the protected clauses, thus don’t need a referendum, the three said.
Uhuru’s assent renders the cases nugatory.
“Once the President assents to the bill, the same not only becomes law but part and parcel of the Constitution whose validity and legality will automatically be excluded from challenge by or before any court of law,” the three said.
MUHURI, through chairman Khelef Khalifa, supported this motion.