The fate of the much-anticipated electoral boundaries review ahead of the 2027 General Election now lies in the hands of the Supreme Court after the country breached the constitutional timelines within which to review them.

Legal experts now say any move to review boundaries of the constituencies and wards without either amendments to the law or the Supreme Court advisory would be challenged in court as having been undertaken outside the legal limits.

“It is unfortunate we find ourselves in such a constitutional crisis with our hands tied over the delimitation of electoral boundaries. But I hope the Supreme Court can guide us on the way forward on whether we can unlock the process through a constitutional review or parliamentary amendment of the law,” constitutional lawyer Bobby Mkangi told the People Daily.

At the same time, observers are now cautioning that time is running out for appointment of new Independent Electoral and Boundaries Commission (IEBC) commissioners.

Already, the country has breached the constitutional requirement that the country reviews the electoral boundaries within a time frame of not less than eight years, and not more than twelve years from the last review exercise.

Article 89 of the constitution states: “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 12 years, but any review shall be completed at least twelve months before a general election of members of Parliament. If a general election is to be held within twelve months after the completion of a review by the Commission, the new boundaries shall not take effect for purposes of that election.”

Given the fact that the country last reviewed the boundaries in 2012, the country was supposed to undertake the next review of electoral boundaries by March 2024, which has since elapsed and closed the legally stipulated time frame.

Timelines breached

The absence of a fully constituted IEBC has caused the timeline given by the constitution to lapse without another review being done. The constitution recognizes that the number of constituencies must remain at 290 even if the boundaries were to be delimited but the poll agency can review the number, names and boundaries of wards periodically. If the number of constituencies were to be altered, IEBC must conduct a referendum.

In July, IEBC chief executive Marjan Hussein Marjan moved to the Supreme Court seeking an advisory over the delayed delimitation of the constituencies and wards due to lack of commissioners.

Marjan says the commission faces a serious constitutional crisis after failing to undertake a review of the electoral boundaries by March 2024 which former Attorney General Justin Muturi had warned would have far-reaching consequences on the country’s political stability, social cohesion, and integrity.

“Since there is a breach of Article 89 (2) of the constitution, we have moved to the Supreme Court and filed a advisory reference seeking advisory opinion of the supreme court on whether the constitutional timelines for the delimitation can be reviewed or extended,” a senior IEBC official who declined to be quoted due to the sensitivity of the matter told People Daily.

The IEBC also wants the apex court to determine who can extend the timeline, and whether it is the court or it requires a constitutional amendment bill.

Even with the existence of 27 protected constituencies that fall short of the population threshold, the commission when delimiting boundaries must retain the number at 290 unless a referendum is conducted to abolish them.

Lawyer Gad Awuonda, who was part of the Committee of Experts that birthed the 2010 Constitution blames the delay to review the electoral boundaries on political posturing and incompetence on the part of IEBC commissioners.

“It is a sad testament of the incompetence, lack of preparedness and political manipulation of those at the helm at IEBC. Why didn’t they start the process immediately when we were in the eighth year? Why did they have to wait until we breached the constitution?” he said.

But he says once the IEBC has been reconstituted, those given the mandate should embark on the process as quickly as possible. This is the first time in history that Kenya has been without a fully constituted electoral body for over a year as previously there has been a smooth transition from one set of commissioners to another.

Several electoral areas have remained without a representative, either a Member of Parliament or Member of the County Assembly for more than one year since lack of commissioners in IEBC means no by-elections can be done thus residents of the affected areas have been denied their democratic right to representation.

Timelines

Sources at IEBC revealed how policy work has piled at the commission as the appointing authority continues to toy around with the appointment of commissioners. With the political parties disagreeing on the names of people for the IEBC’s selection panel, the 2027 general elections could be conducted by an ill-prepared commission.

“It puts unnecessary pressure on the commission and in that pressure, mistakes can be made. Nobody at that time wants to understand, for example commissioners were brought on board very late and the critical decisions on the electoral process like procurement were supposed to have been made earlier. That affects the efficiency of conducting a credible election,” the official said.

Despite the fact that the technical work of creating new electoral areas is complete, the actual exercise which should be presided over by the commissioners ought to have been started by now so that it can be concluded by 2025 and the new constituencies be factored in during the 2027 general elections.

“The recruitment of new IEBC commissioners is a matter that should be treated with urgency. Anything that touches on policy and authorisation by the commissioners is still pending until they are appointed and assume office. For example, delimiting the boundaries whose deadline was in March, the groundwork had been done and now awaits commissioners to carry out the next phases,” the official said.

He explained that once the commissioners take over the process, they will first conduct public participation and stakeholders’ engagement before writing a report to Parliament. He warned that the process may be tedious, complicated and time consuming as disgruntled parties may differ on various issues including the names to be given to the new areas that have been created.