The Building Bridges Initiative question about whether allocation of the proposed 70 constituencies is a preserve of the IEBC or not has two angles.
Kenyans have a right to promulgate anything and call it a Constitution. Therefore that argument that the Independent Electoral and Boundaries Commission has the final jurisdiction on the delimitation of boundaries is not based on the enactment of the constitutional agenda.
It is Wanjiku who created IEBC and donated the powers to the agency. Wanjiku can pull out that power from IEBC and it is at the referendum where the people make such a decision.
The proponents of the Tangatanga are saying it is only the IEBC with those powers. That argument is not constitutional and legal but populist. Any organ created by the Constitution can be added power, abolished or removed by Wanjiku. That is the Constitution.
Can Parliament interfere and open BBI and drop the Second Schedule? The moment they alter even a comma, it becomes a parliamentary initiative. It ceases being a popular initiative.
Parliament is in a catch-22 situation. Either pass the BBI bill the way it is or alter it and people go to court to dismantle the process on the grounds that the document that is being debated is not a popular initiative but a parliamentary one.
The legal and constitutional implication in that is that the moment Parliament opens it, it becomes the Wako Draft that was opened in Parliament, went to Naivasha and was rejected.
IEBC chairman Wafula Chebukati's argument that he is the custodian of delimitation of boundaries is right under the current Constitution. Do people have the right to take those powers from him? Yes, through a referendum.
Once a new constitutional order under the BBI is in place– if at all it will see the light of day – Chebukati will follow the new constitutional order as will be promulgated by President Uhuru Kenyatta or the president who will be there.
Politically, the BBI stands as a document that is already dead. The propagandists and social media of the Tangatanga have already run away with propaganda that only IEBC has that power.
The lawyer spoke to the Star