A section of MPs believed to have the blessings of the Executive are plotting to postpone next year’s general election, a move sure to trigger political fireworks.
The Star has established lawmakers led by Ndaragua MP Jeremiah Kioni are preparing to petition the High Court to postpone the election date to give the IEBC adequate time to conduct boundary delimitation.
The MPs say their move is meant to avert a constitutional crisis by going into an election with electoral units that are illegal.
Kioni is the chairman of the National Assembly Constitutional Implementation Oversight Committee.
However, lawyer and constitutional expert Paul Aol told the Star, "You cannot postpone an election on the basis of constituencies.
"The reason is constituency boundaries are supposed to be reviewed between eight and 12 years. This means if a general election is coming and it is still within that time frame, then no law has been violated.
"For example, if we went outside 12 years without review, then you can say the election is unconstitutional. But as things stand right now, the last review was done in 2012, meaning that from 2012 up to 2024, all the constituencies are still valid."
At the heart of the elections postponement push are concerns nearly 200 constituencies do not meet the population threshold provided for in the Constitution.
The current population quota per constituency is 163,000 voters.
In an interview with the Star, Kioni said they will ask the courts to compel the IEBC to conduct the boundary review before the August 9, 2022, vote to avert what he calls a looming constitutional crisis.
The MP said the 26 constituencies that were specially protected in 2012, though they didn't meet the threshold would be scrapped without the review.
The 26 constituencies were exempted from the population quota in 2012.
“This is a serious enough issue to occasion a discussion on whether we should have elections on the proposed date of August 9, 2022, or thereafter,” Kioni said.
“Why go into an election with the constituencies as they are? To me, it is a thing that falls into the definition of an emergency in the country,” the lawmaker said.
There has been speculation the Executive was keen to have next year’s poll postponed to allow time for the Building Bridges Initiative reforms and referendum.
The High Court has derailed the BBI process by declaring it illegal. Even if the pending appeal is successful, there is hardly enough time to hold a referendum before the next elections.
“The protected constituencies spread across 16 counties will be scrapped by the IEBC after the next general elections. We cannot agree to hold elections with our voters spread across these 16 counties on the chopping board. A solution, therefore, is a must,” Kioni told the Star.
Statistics from the 2019 National Population Census show many constituencies across the country are way below the newly set population threshold.
According to Article 89 (5) of the Constitution, the boundaries of a constituency shall be such that the number of inhabitants in the constituency is as nearly as possible the population quota.
However, the population quota is Kenya’s population divided by the number of constituencies.
Among constituencies that the Andrew Ligale-led boundaries team protected are Tetu, Ndaragwa, Mukurweini, Othaya, Kangema, Bura, Galole, Isiolo South, Kilome, Laisamis, North Horr, Saku, Mbeere North, Lamu East and Lamu West.
Others are Mvita, Mwatate, Wundanyi, Voi, Mathioya, Samburu East, Marakwet East, Keiyo North, Mogotio, Vihiga and Budalang'i.
In what portends a charged political discourse should the postponement plan proceed, Deputy President William Ruto’s hustler side has opposed any plans to extend Uhuru’s term by even a day. He has said the Constitution is clear on election dates.
Ruto’s allies, among them Garissa Township MP Aden Duale and Tharaka Nithi Senator Kithure Kindiki, said an extension is only provided for in the event of a war in the country.
"Kioni and his team can try anything else but postponing of the general election, whether through the BBI or whatever it is, will never happen. The next general election will take place on August 9, 2022," the former General Assembly majority leader said.
"It is a constitutional right for Kenyans to elect their leaders after every five years, which is one of the items that are part of the basic structure of the supreme law. Kioni and his team are driving on a superhighway at a super speed and they will crash," Duale said.
The DP himself said those pushing for a postponement of the election — whether for BBI or any other matter— are speaking the “language of impunity".
Also in the cards by the proponents of election postponement is the question of IEBC preparedness — or lack of it — for the upcoming election, owing to the vacant commissioner posts.
Their take is that though a selection panel is conducting interviews, the commissioners will be hired less than a year to the polls, hence, may take time to learn the ropes.
When there was controversy over President Mwai Kibaki’s end of term, the courts pushed the poll date back by three months to March 4, 2013.
Constitutionally, the term of Parliament can only be extended for six months on grounds of an emergency.
Uhuru is set to leave office in August 2022, but should the courts agree with the planned petition, elections may be held in March 2023.
The EBC, in a June 24 statement said the 26 constituencies will not be scrapped, adding it has until March 2024 to review the boundaries.
“Until the boundaries review process is concluded, all the existing constituencies remain as they are,” the IEBC said. It is opposed to the BBI boundary review proposal to delineate the new 70 constituencies.
The constituencies are not supposed to have gone for 10 years, which had nothing to do with the next boundaries review
But Kioni said the those in the discussion were already engaging lawyers "since their hands are free now following the conclusion of the Kiambaa MP by-election" won by DP Ruto's UDA candidate.
“It is the next item on the table of our political discussion since the by-election is now behind us,” the lawmaker said.
He said they are concerned about a looming constitutional crisis in as much as the IEBC said it is planning to hold elections in the constituencies as they are.
“The constituencies are not supposed to have gone for 10 years, which had nothing to do with the next boundaries review,” Kioni said.
Mukurweini MP Antony Kiai said the supposed talks were at the preliminary stages of agreeing on how to find a common way forward.
“So far, nothing concrete has been agreed on. We are still mobilising the members since bringing them together has been a challenge,” the MP said on Wednesday.
Budalangi’s Raphael Wanjala said that since IEBC has limited time to handle the review conclusively, not much can be achieved.
But in what may give credence to the talks, Cotu boss Francis Atwoli — an insider in Uhuru’s power circle — opined that there was more to gain when the polls are postponed.
He cited the Covid-19 pandemic, likely post-election violence, natural disasters, among other threats to human life as justification for postponement.
Atwoli, in an opinion published in the dailies, said the IEBC was not prepared for the election, representing a tipping point for post-election chaos.
“Equally, there are several bills related to election management before Parliament that should be passed to ensure a seamless, transparent and credible election,” the Cotu boss said.
He further held that the country is yet to deal conclusively with issues that cause flare-ups during elections, citing the winner-takes-all, which he said BBI attempts to resolve.
Those bidding for postponement argue that the constituencies will never realise the set quota, "even if a miracle was to happen”.
The continued references to the constituencies after August 2022 may raise legitimacy concerns, they say.
Of concern is that anyone can challenge the validity of the constituencies, factoring in the end of the grace period, and the law setting the threshold.
The 2012 election was pegged on a population quota of 133,000, which has now increased to about 163,000.
On this, Kioni said. "The IEBC cannot also pretend to be more engaged on any other aspect other than legitimising those who are going to be elected next year.
“We are saying that there is no point of having an election where you are going to disenfranchise your own people,” the MP said.
(Edited by V. Graham)