Failure to create new boundaries will affect 2027 polls, IEBC says

The Independent Electoral and Boundary Commission has told the Supreme Court that it will be illegal to hold the 2027 elections without delimitation of boundaries.

While admitting that time for review has already passed, a position taken by Attorney General Dorcas Oduor, the commission said if the exercise does not happen, the legitimacy of the election result will be in doubt.

Justice Njoki Ndung’u paused to ask whether the electoral body’s violation of the Constitution from March 2012, when the last delimitation occurred, would affect the next election.

IEBC lawyer George Murugu said Article 3(2) of the Constitution clearly states that any attempt to establish a government other than in compliance with it is unconstitutional.

“Justice Njoki Ndung’u asked a very, very serious question. Does it mean that, without the delimitation exercise being carried out as ordered by the Constitution, and the timelines having passed, will affect the legitimacy of the 2027 result? My answer is yes,” said Mr Murugu.

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IEBC’s other lawyer Edwin Mukele suggested that the same be done by next year July, which will be at least 12 months to the August polls. He stated that failing to do so would result in a negative impact on voter registration, inspection, and audit of the voter register. He noted that this would also disenfranchise Kenyans, as the census numbers used under the current boundaries would determine development after 2027, among other factors.

“If IEBC is not allowed to review the boundaries, there will be a ripple effect. The election requires delimitation of the boundaries. The product of the delimitation means there will be a lot of transfer of voters, audit and inspection of register and that is an extreme matter for this court to consider as the election is around the corner,” said Mukele.

Justice Njoki was not alone in asking hard questions on why the commission slept on its job as the commissioners left after the 2022 General Election.

Justice Isaac Lenaola was first to raise his concern over the advisory sought by IEBC chief executive officer Marjan Hussein Marjan. He asked the lawyers representing both the commission and the AG if the case was an invitation for the apex court to extend an illegality.

Justice Lenaola observed that the issue was murkier as High Court Judge Lawrence Mugambi had just stopped the vetting of President William Ruto’s nominees.

“The breach is continuing, and by the court extending the timelines without the mandate of the Constitution, are you asking the court to breach the Constitution itself?” posed Justice Lenaola.

He added that the AG was not helping ‘in a very untidy situation’, stating that there ought to be a form of consensus or assistance from the IEBC and the AG for ‘white smoke’.

Deputy Chief Justice Philomena Mwilu shot straight from the hip, asking whether the AG was blowing hot and cold, as her predecessors had informed the commission that it ought to seek the court’s opinion on the issue.

In response, Principal State Counsel Odiwour Kaumba said by the time the AG wrote to the IEBC CEO, the office was aware that no commission was in place and the timelines set by the law had already lapsed.

Kaumba stated that the communication was clear that Marjan could not sue on behalf of the commission, hence, the AG did not put timelines for the commission to approach the court. In her opposition to the case, the AG said that no boundaries can be reviewed without the six commissioners and a chair in office. She also believes it is too late.

Kaumba said the timelines are cast in stone and the laws have already lapsed. At the same time, the government legal advisor said that the commission’s lack of commissioners makes things worse.

The AG’s position differs from that of her predecessor, Justin Muturi, who informed Marjan to seek advice from the highest court in the land following a crisis occasioned by the removal and retirement of the Wafula Chebukati team.

The late Chebukati, Boya Molu, and Abdi Guliye’s tenures expired in January 2023. 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, which declared President William Ruto the winner.

The IEBC wrote to Muturi on March 20, 2024, asking him to give an opinion on whether the secretariat could undertake the commission roles, including delineating boundaries, in the commissioners’ absence.

The IEBC also asked the then AG to interpret whether the timelines set in the law were cast in stone.

If not, they could be wriggled or extended while factoring in the time it had no commissioners. Muturi, responded on April 25, 2024, saying failure to undertake delimitation within the set timelines had legal consequences and challenges.

“Individuals may seek legal redress, arguing that failure to delimit boundaries had compromised their constitutional right to fair representation and participation in the electoral process,” said Muturi.

Muturi asserted that there is no way the IEBC could stretch the time beyond the set limits. He asked Marjan to seek an advisory from the top court but pointed out that the secretariat had no powers to do the commission’s work.

“By seeking an advisory opinion from the Supreme Court, the commission will obtain authoritative guidance on any legal issues relating to delineating boundaries,” he said.

Marjan, in his justification for the advisory, said following Muturi’s opinion, the commission could not ignore it and do nothing. He argued that the country is in grave danger of going to the next general election without delineating its boundaries.

If this happens, it will be the second cycle under the 2010 constitution. Kenya has 1882 elective seats. The presidency has one, the Senate has 47 seats, and the counties have 47 gubernatorial positions. An equal number of women representatives are reserved. The lower house has 290 elective Members of the National Assembly, while the wards have the most elective positions, at 1450.

The commission’s CEO said failing to delimit the seats would result in disproportionate and unbalanced voting blocs and unfair and unjust representation.

“As things stand now, the process is yet to commence since IEBC has no commissioners in office apart from deskwork which was conducted by the secretariat and the now retired commissioners,” said Marjan.