The country’ electoral body yesterday admitted that Kenya is facing a constitutional crisis following the lapse of the timelines given to allow the boundaries delimitation exercise.

Independent Electoral and Boundaries Commission (IEBC) Chief Executive Marjan Hussein Marjan told MPs that the commission can only await an advisory from the Supreme Court on whether timelines can be extended and whether the secretariat can conduct the boundary review exercise in the absence of commissioners.

The IEBC has been operating without commissioners for a year after the term of the former commissioners came to an end while three other commissioners resigned to avoid facing the Aggrey Muchelule Tribunal that was formed to investigate their conduct. The seventh commissioner, Irene Masit, was forced out after the tribunal recommended her sacking.

Legal position
Marjan, appeared before MPs to shed light on a petition regarding the delimitation of boundaries, clarified that the commission’s decision to move to the Supreme Court followed an advisory from the Attorney General warning them against conducting such an exercise in the absence of commissioners as this would be unconstitutional and have far-reaching consequences on the political stability, social cohesion and integrity of the country.

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 in March 2012 and the latest date for the next review was to be in March 2024.

Marjan explained that the commission had not undertaken the delimitation of boundaries owing to vacancies in the membership of the IEBC.

“In this regard, the IEBC in July 2024, filed a reference requesting an advisory opinion from the Supreme Court on how to proceed taking into account and lapsed constitutional timelines for delimitation of boundaries in order to get guidance on the next steps given the current legal crisis,” he told the legislators.

Last month, a parliamentary committee supported the proposal to have the timeline for the boundary delimitation exercise extended. MPs who sit in the Justice and Legal Affairs committee (JLAC) chaired by Tharaka MP George Murugara observed that empowering Parliament to extend the period of reviewing the names and boundaries of constituencies beyond the prescribed period will ensure flexibility, promote fair representation and accommodate unforeseen circumstances that may hinder the process.

Yesterday Marjan explained that should the top court give them the go-ahead to carry out the boundary review, this has to be done one year before the 2027 general elections as the commission would use the new boundaries to map out the elections.

He added that during the review exercise, the commission will not alter the number of constituencies as they are capped at 290 and can only re-name the constituencies or reorganise them.

Already Thika Town MP Alice Ng’ang’a has come up with a legislative proposal, The Constitution of Kenya (Amendment Bill) 2023, to protect 26 constituencies that were protected in the first review.

Marjan explained to the MPs that prior to the term of the commissioners lapsing, IEBC had prepared a Boundaries Review Operation Plan (BROP) to provide a road map for the delimitation exercise that would be done in three phases.