Kenyans are most likely to go to the 2027 general elections with the boundaries as drawn today.
Poll agency IEBC has admitted that the commission may not deliver as per the dictates of the law.
Boundaries review is to be concluded 12 months to the general election, according to the IEBC Act.
The commission has asked the Supreme Court for a way out of the debacle. The apex court is set to sit on Monday and give directions.
The country is already in uncharted waters, made worse by the delayed reconstitution of the electoral commission.
A panel President William Ruto appointed on January 27, just did its first meeting on Friday.
Insiders pointed to a standoff in the first order of business – election of chairperson and deputy chairperson. Two members of the hiring team - Fatuma Saman (Interreligious Council of Kenya) and Carolene Kituku (LSK) - took their oath of office on Friday.
The panel elected Nelson Makanda as chairman and Lindah Kiome as vice chairperson. The hiring team has called for applications to fill the vacancies at the Independent Electoral and Boundaries Commission.
Consequently, the panel will have 90 days to shortlist two candidates for the position of chairperson and nine names, from whom the President will nominate the chairperson and six commissioners and forward them to Parliament for vetting.
“I assure Kenyans that the panel is committed to conducting the recruitment in a fair and impartial manner,” Makanda said.
The earliest the commission would be in place, as per IEBC estimates, is the end of June - too short a time for the new team to deliver the review.
IEBC Chief Executive Officer Hussein Marjan said the agency will be time constrained to meet the constitutional deadlines in regards to the delimitation process.
“Even when the commissioners join in June and those timelines remain, will time be sufficient to complete the process? My estimate is no. It will be very difficult for the commission to work with these timelines,” Marjan told Citizen TV.
One of the challenges, he noted, was that to complete the delimitation process, they will need to return to the field and confirm with county commissioners and their teams that the information they collected is correct, a process that is people-driven and time consuming.
“Commissioners are supposed to oversee the processes in the field for purposes of public participation, which requires them to go to the 290 constituencies. Even if they are to go once to each constituency, we are already going beyond one year,” Marjan said.
The country hasn’t had a fully constituted electoral commission for two years following the exit of Chairman Wafula Chebukati and commissioners Boya Molu and Prof Abdi Guliye in January 2023.
Three other commissioners resigned in December 2022, while another was removed by a tribunal, after which she challenged the ruling and quit.
On assuming office, the commissioners will find their in-tray full, with three Parliamentary by-elections to conduct and nine other elections at the ward level.
These constituencies are Banisa, which fell vacant after the death of MP Kullow Hassan; Magarini following the nullification of Harrison Kombe’s election; and in Ugunja, to replace Opiyo Wandayi, who was appointed to the Cabinet in August.
Banisa residents have not been represented in Parliament for almost two years, despite the law providing that a by-election should be held in 90 days after a seat falls vacant.
The wards where by-elections need to be conducted are Angata Nanyokie, Chewani, Fafi, Kisa East, Lake Zone, Mumbuni, Narok Town, Nyamaiya and Nyansiongo.
The new commission will also need to conduct voter registration and institutional reforms. But the biggest challenge commissioners will have to deal with is the border delimitation, which is likely to plunge the country into a constitutional crisis.
IEBC Legal Services Director Chrispine Owiye said the country is not only late with the boundary delimitation but is in “profound breach of the constitution”.
“The constitution provides that boundaries of constituencies and wards should be delimited between eight and 12 years post the previous delimitation. The cut off date was March 2024, when the 12 years lapsed,” Owiye told Citizen TV on Thursday.
Article 89 (2) states that, “The Independent Electoral and Boundaries Commission shall review the names and boundaries of constituencies at intervals of not less than eight years and not more than twelve years, but any review shall be completed at least twelve months before a general election of members of Parliament”.
Based on this provision, Owiye noted that failure to delimit boundaries when it is a provision of the Constitution is a constitutional breach and has a bearing on electoral units that Kenyans had anticipated delimited between eight to 12 years.
This raises the legality of the electoral units (constituencies and wards) as they currently exist and going into the 2027 elections.
The constitutional scholar further said there is likely to be a barrage of litigations on the matter, but was quick to note that the failure to undertake the process under the timelines was not on the part of the IEBC but external factors.
“The First Schedule of the IEBC Act is clear on the avoidance of void in the office of the chairperson and commissioners and provides that six months towards the end of term of commissioners, the process of finding their replacement should commence. That should have been June 2022,” Owiye noted.
Constitution expert Ekuru Aukot said the question should be how the country got into the crisis. “The delay is purposeful and it is the Executive to blame. They are doing it deliberately to compromise the whole electoral process which is about delimitation of boundaries per Article 89, the continuous voter registration under Article 88.”
“It is all political manipulation. Even the delayed recruitment of commissioners is deliberate and that is offending the Constitution,” Aukot told the Star on Friday.
“I am not surprised as the current
President opposed this constitution.
We speak about border delimitation
and continuous voter registration,
the man does not believe in it. We
have to address the question: Who
should then be accountable?” Aukot said.
