IEBC boss warns of constitutional crisis over boundaries review deadline

IEBC CEO Marjan Hussein. [File, Standard]

Delayed review of boundaries for electoral units has thrown the country into a constitutional crisis owing to lack of a substantive Independent Electoral Boundaries Commission.

IEBC Chief Executive Officer Marjan Hussein Marjan yesterday said the commission was waiting on an advisory by the Supreme Court on whether deadline for the boundary review process could be extended, and whether the delimitation exercise can be conducted without commissioners in place.

Notably, the delimitation of boundaries is long overdue with the March 2024 deadline having elapsed. Article 89(2) of the Constitution provides that 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 carried out in March 2012.

The lack of commissioners following the exit of chairman Wafula Chebukati and commissioners Boya Molu and Abdi Guliye, whose tenures expired in January 2023, has compounded the situation.

Four other commissioners -- vice chairperson Juliana Cherera, Francis Wanderi, Justus Nyang’aya and Irene Masit -- were kicked out of office following their rejection of the 2022 presidential election results that declared President William Ruto the winner.

The CEO, while appearing before the National Assembly’s Petitions Committee, said its decision to move to the Supreme Court had been informed by an advisory by the Attorney General who had warned against conducting the delimitation exercise without commissioners in office.

The AG, marjan said, had also warned that failure to conduct the delimitation exercise could lead to legal challenges, compromise political stability, social cohesion and electoral integrity.

“The Commission notes with appreciation the intention of the petition to ensure the delimitation of boundaries as provided under Article 89 is undertaken. However, for the reasons discussed, the commission submits that it cannot currently undertake the exercise and awaits further direction on the matter,” said Marjan.

He said the Electoral body had in July 2024 filed a reference requesting an advisory opinion from the Supreme Court on how to proceed taking into account the elapsed deadline and absence of commissioners.

“We crave the Supreme Court’s advisory opinion on issues including whether IEBC can undertake the process of delimitation in the absence of commissioners, whether it can conduct a review of the names and boundaries of constituencies and wards when the timelines have elapsed and whether the constitutional timelines can be extended,” Marjan said.

Last week, lawyer Danstan Omari proposed bringing back the former IEBC chair Chebukati and his team to avert a constitutional crisis.

“Elections must be conducted, who will perform the election exercise? We are in a major constitutional crisis that can bring this country down,” Omari said.

He added: “My appeal as a senior advocate is that the government should go to the Supreme Court and get an opinion. We have legal ways to solve this crisis.”

Yesterday, the IEBC CEO said that in the event the Supreme Court gives the green light for the commission to conduct the delimitation, it would be done a year before the 2027 General Election.

He further said that during the boundaries review, IEBC would not alter the number of constituencies which are currently 290 but could only re-name or re-organize them. For the 1,450 wards, however, he said their numbers could be altered and renamed.

The development comes amid a push by a section of MPs to extend the boundaries delimitation deadline. Tharaka MP George Murugara-led Justice and Legal Affairs committee argues that the extension would ensure fair representation and accommodate unforeseen circumstances that may hinder the delimitation process.

“The extension is to be made through a resolution passed by a majority of all Members of the National Assembly and a majority of the county delegations in the Senate,” further reads a report by the committee.

Some of the targeted constituencies in the parliamentary boundaries delimitation include Othaya, Ndaragwa, Budalang'i, Vihiga, Voi, Wundanyi, Mwatate, Galole, Bura, Isiolo South, Samburu East, Laisamis, North Horr, Saku, Kilome, Mukurweini, Mbeere North and Mathioya.

Others are Kangema, Marakwet East, Keiyo North, Tetu, Mogotio, Lamu East, Lamu West and Mvita.

Thika Town MP Alice Ng'ang'a has, however, introduced a proposal in the National Assembly to amend Article 89 of the Constitution to protect 26 constituencies that were protected in the first  boundaries review, even after failing to meet the population quota requirement and which risk being merged with others when IEBC conducts the second review.

The Constitution of Kenya (Amendment Bill) 2023 seeks to amend the law to ensure the constituencies are protected for another minimum of eight and a maximum of 12 years, allowing them to gradually grow their population to meet the threshold.

"The Constitution only safeguarded the 26 constituencies from the initial review, which took place in March 2012. With the second review due in 2024, 12 years after the first, it is crucial to ensure that the constituencies are not merged with others," reads the Bill.

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