Lawyer Muthomi Thiankolu on Thursday evening told the seven-judge bench that the Building Bridges Initiative was a monster that is bound to eat its people if it is allowed to stand.
Through an illustration to the court, Thiankolu likened BBI to a hydra monster with seven heads and each time you cut one head it grows two more heads.
Through a power-point presentation to the judges, he showed the court the monster saying it was a dangerous creature.
He laid a basis on the connection between the BBI and how we got the first constitution after independence.
Thiankolu appearing for Morara Omoke said we should think about how future presidents are likely to treat the Constitution, if the appellate court reversed the high court judgement.
“When this monster came, some of our beloved brothers and sisters in their wisdom or lack of it thought it would make a fantastic pet and therefore it needs to be nurtured,” he said.
He said at the time some of our forefathers did not share those views and they rose to protest they included Mekatili wa Menza, Koitalel Arap Samoei and Dedan Kimathi.
“This monster ate our freedom, dignity, rights and we were tenants in our land and basically it ate every fabric of our social, political and economic entity,” he said.
Thiankolu added that Kenya sent its best brains to Lancaster House between 1960 and 1963 and their singular task was to design a sword to be deployed whenever the constitution was threatened with a breach.
“The people who wanted the hydra monster wanted to make the sword ineffective they were hitting it against a granite rock so that the sword would be blunt 38 times through 38 hyper amendments,” he added.
The lawyer added that Kenyans kept running to the Judiciary giving the example of Kamau Kuria who said "the monster had swallowed his right to travel and he was told by the court, the passport belongs to the president."
“Professor Maina Wa Kinyenji ran to the Judiciary to defend his academic freedom and instead of deploying the sword, the Judiciary dropped the sword,” Thiankolu said.
He submitted that Kenyans kept running to the Judiciary and the various Judges without mentioning their names invariably trampled and dropped the sword.
It was his argument that before the 2010 constitution, there were a few judges who had the courage to use the blunt sword to slay the said monster.
“One of them was Chief Justice C.B Madan sitting in that bench called Githunguri vs republic with Late Justice Evans Gicheru and late Justice Daniel Aganyanya and they slew that monster even using the blunt sword.
He urged the seven-judge bench not to drop the sword on this BBI monster because as a country we have been there before when judges dropped the sword leading to detentions without trial and the famous Nyayo torture chambers.
“I beseech you my lord and your court and I pray for you and your colleagues to be like former CJ Madan even though nearing his retirement he used the blunt sword,” he said.
“I pray you will have the courage, fidelity to the oath of office and will deploy the sword and slay the monster called BBI,” Thiankolu told the judges adding that they had a challenge and they need to ask themselves questions on the monster.
“Kenyans are watching the decision, not for its intellectual depth and not how you use the language of the law... What Kenyans are watching is will the Court of Appeal drop the sword,” he said.