The Independent Electoral and Boundaries Commission (IEBC) has moved to the Supreme Court to seek an advisory opinion over delaying the delimitation of constituencies' boundaries and other electoral processes due to the lack of commissioners.
The IEBC has been operating without commissioners for a year.
The electoral agency through its chief executive Marjan Hussein moved to the highest court on Thursday to seek a temporary solution to the stalemate.
It argued that this has been occasioned by the failure to recruit a new chair and six commissioners as the constituency boundary review timeline has kicked in without agency being properly constituted.
Marjan said that the commission faces a serious constitutional crisis over failure to undertake a review of electoral boundaries by March 2024 which Attorney General Justin Muturi has since said will have far-reaching consequences on the country's political stability, social cohesion, and integrity.
He cites that under Article 89(2) of the Constitution provides the IEBC shall review names and boundaries of constituencies at intervals of not less than eight years, and not more than 12 years. The last review was in March 2012 and the latest date for the next review was to be in March 2024, which has since lapsed.
The IEBC, which has filed the petition, has based its argument on Article 163 (6) of the Constitution which provides that; The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.
"That this court is duly clothed with jurisdiction under Article 163(6) to provide an advisory opinion on the matter which opinion may unlock the unprecedented deadlock facing the commission and I, therefore, beseech to consider the request and advice as is prudent," Marjan said in his affidavit filed at the Apex court.
The commission seeks legal opinion on three issues including whether it can undertake the process of delimitation of electoral boundaries and other electoral processes in the absence of commissioners or the requisite quorum of commissioners.
Secondly, IEBC is seeking opinion whether it can conduct a review of the names and boundaries of constituencies and wards when the timelines envisaged under Articles 89(2) and 89(3) as read with Section 26 of the of the County Governments Act have lapsed.
Thirdly, the question is whether the time envisaged by the constitution for delimitation of electoral boundaries, having lapsed, can be extended or otherwise excluded from the time when the commissioners were not calculating or reckoning time.
IEBC says its decision to approach the court was necessitated by the AG's real opinion dated April 22, 2024, that it had breached the constitution by failing to conduct the delimitation of boundaries within the timelines set out by the constitution.
Marjan says that the AG, who is the chief legal adviser of the government, stated that provisions of the constitution should not be contravened under any circumstances and that regardless of the circumstances currently obtained, the commission must find a way of undertaking delimitation.
“From a legal perspective, the failure by the Commission to undertake the delimitation of boundaries within the timelines set by the Constitution may result in legal challenges and litigation. Individuals may seek legal redress, arguing that the failure to delimit boundaries has compromised their constitutional rights to fair representation and participation in the electoral process," the AG told the IEBC.
The chief executive adds that following the High Court decision rendered on January 24, 2024, ordering immediate recruitment of commissioners, the same has never happened to date and all functions at the commission have been brought to a halt.
He says that the vacancies in the IEBC have far-reaching consequences since the delimitation deadline has lapsed and various byelections have since not be conducted in some counties across the country.
Marjan says that although the returning officers for Parliament and County Assemblies are not commissioners, the secretariat of IEBC cannot conduct elections or by-elections.
This is because decisions to allocate funding, procure materials, hire temporary staff (including their training), and equipment for the elections, facilitate the conduct, supervision, and observation of elections, and referendum are made by commissioners.
The constitutional single six-year terms of the chairperson Wafula Chebukati, and members Boya Molu and Abdi Yakub Guliye, expired on January 17, 2023.
The vice chairperson Juliana Cherera, and members Justus Nyang’aya and Francis Wanderi resigned in December 2022 rather than face a tribunal appointed by President William Ruto to investigate their conduct during the August 9 General Election.
Irene Masit was dismissed by President Ruto on February 27, 2023 following a recommendation by a tribunal that investigated her conduct during the election.
