By EVELYN KWAMBOKA
The Judiciary is set to hear more than 60 cases challenging the decision by Independent Electoral and Boundaries Commission to delineate new constituency boundaries.
The cases are to be heard within 90 days. Aggrieved political leaders and constituents, following a Gazette notice published on March 6, filed the cases.
IEBC chairman Issack Hassan (centre) with former Justice Minister Mutula Kilonzo (right) and Local Government Minister Musalia Mudavadi (left) during the launch of a report on boundaries review. The process has been slowed by numerous court cases. [PHOTO: FILE/STANDARD] |
The cases are from Nairobi, Mwingi, Turkana, Ijara, Mbita and Gwassi, Bobasi, Taveta, Wajir South, Sabatia, Emuhaya, Mandera, Lolgorian, Kitui, Gatundu North, Malindi, Kilgoris, Gichugu, and Homa Bay.
Some politicians and constituents behind the cases are seeking to safeguard their political territories and resources. Others raise issues on constituency names, reduction in size, and failure to create additional units in highly populated area.
They obtained interim orders suspending implementation of the changes made by the commission, pending their hearing and determination of the case.
The court also allowed them to file Judicial Review applications seeking to quash the Gazette notice and to compel the commission to quash the proceedings and resultant decision published in the document.
Others obtained orders that are to operate until April 18 or 19, when their cases would be mentioned. It is here that they will come face to face with the commission to have the orders extended. Lawyers representing the applicants will be relying on the Constitution and other laws such as the National Assembly Constituencies and County Assembly Wards Order 2012 and the Survey Act to argue their cases.
In the cases filed, the commission is accused of changing electoral boundaries without any justification or consultations with constituents.
In Turkana County, civic leaders are seeking legal redress to reclaim parts of their constituencies and wards they lost to West Pokot and Baringo counties.
The councillors claim the hived off areas might have oil and geothermal resources.
The areas include Akoret, Kapedo North, Kapedo West, and Kapedo East sliced from Turkana East constituency to Tiatyi constituency of Baringo County, and Amolem, Nasulut, Nasirmat, Amaler areas of Turkana South constituencies placed under Sigor constituency of West Pokot County. From Mbita and Gwassi, a case filed by civic leaders through their lawyer TJ Kajwang’ is challenging the commission’s decision to rename the two constituencies, as Suba North and Suba South.
The complainants say IEBC considered irrelevant facts in changing the names. In an affidavit filed by Hezron Matiku, he claimed IEBC did not consult the Mbita community to have the name changed. Matiku represents Kaswanga/Wanyama ward.
"The decision to change the names is an unlawful act on fundamental issues, which directly affect my political rights enshrined in the Constitution," he said. The councillor said due to the changes by IEBC, he does not know where he belongs.
In another case, Justice Mohammed Warsame granted civic leaders from Emuhaya and Sabatia interim orders barring the commission from altering local boundaries. Representing the civic leaders in court, lawyer Stephen Mwenesi said the commission altered the boundary of Sabatia and Emuhaya.
He says there was no justification in removing Viyalo and Wanondi sub-locations from Sabatia and Emuhaya constituencies.
The lawyer said IEBC failed to consider the view of representatives of the people as presented, and reached a wrong determination on the delimitation of boundaries and wards. Mwenesi said the National Assembly Constituencies and County Assembly Wards Order 2012 is a subsidiary legislation, which is inconsistent with the Survey Act. The order does not refer to any authenticated, identified plan or map deposited in the survey office.
In other cases, four MPs obtained orders suspending the decision by IEBC to change boundaries in Taveta County and Ijara constituencies in Garissa County.
The two cases filed by MPs Yusuf Haji, Sophia Abdi Noor, Naomi Shabaan and Dan Mwanzo, joined the list of those that have been filed in various courts.
Haji, who is the Defence minister, wants the court to order IEBC to rename and redraw the boundaries of wards in Ijara constituency in a manner that respects the community’s economic, cultural ties, historical and communication attributes.
Through his lawyer Ombati Omwanza, Haji claimed the commission has created constituencies and wards in contravention of the guiding principle and criterion entrenched in the Constitution, and has instead set out its own benchmarks in disregard of the law and to the disadvantage of residents.
He said IEBC acted outside powers conferred to it by the Constitution, and in disregard of the sovereignty of Kenyans.
When the matter comes up for inter partes hearing, Haji is set to seek a declaration that Boni community is a minority and marginalised group in Garissa County, and the constituency in particular, and needs to be protected.
He said it is unfortunate that although the law provided that IEBC be guided by recommendations made by a parliamentary committee, it went ahead to delimit boundaries. In the other case, Shabaan and Mwanzo obtained interim orders from Justice Fred Ochieng’, stopping implementation of boundary changes in Taveta County.
The two MPs claimed IEBC interfered with the size of constituencies without consulting constituents.
