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Supreme Court expected to give direction on boundaries review ahead of 2027 polls

The seven-judge bench is expected to give direction as the country faces a constitutional crisis over the conduct of delimitation of constituency boundaries which already lapsed

All eyes will be on the Supreme Court tomorrow when it is expected to give an advisory on creation of new constituencies and wards ahead of the 2027 General Election.

The apex court is expected to give direction as the country faces a constitutional Crisis over the conduct of delimitation of electoral boundaries which already lapsed.

The seven-judge bench led by Chief Justice Martha Koome is scheduled to render its verdict on the matter as sought by the Independent Electoral and Boundaries Commission (IEBC).

According to the Constitution, the electoral body ought to have completed the review of boundaries by March 6, of last year but the process was derailed by the Commission lacking Commissioners hence drawing the country into a constitutional crisis.

IEBC now wants the apex court  to advise on whether they should undertake the process in the absence of commissioners.

It is seeking an advisory opinion on whether they can conduct a review of the names and boundaries of constituencies and wards when the timelines as stipulated in Article 89 (2) Section 26 of the County Governments Acts have already passed.

It also wants to know whether the set timelines can be extended and if so by whom and under what circumstances.

This comes as 27 constituencies are on the verge of being scrapped ahead of the 2027 general polls for not meeting the 2012 boundaries review population quota which placed 164,000 people per constituency from 72,000.

In urban set-ups, constituencies are allowed to go to up to 140 per cent population target while rural constituencies have up to 40 per cent low.

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Densely populated constituencies are set to be split while those failing to meet the set quota are to be scrapped or merged.

According to lawyer Morara Omoke, even though the time for review of boundaries has already lapsed, the door is still open for IEBC to conduct the process.

“After every 12 years, the electoral body needs to do a review of boundaries but they could not do it because there were no commissioners. They can still do the process before the 2027 election as the door is open,” Morara urges.

The  Nairobi lawyer adds that the country is not in a constitutional crisis as people claim, saying they are trying to create an artificial crisis.

He adds that the possible scrapping of the 27 constituencies that do not meet the set population quota will be of importance because there might be some merging or even splitting of the densely populated ones to ensure citizens get their equal share.

“I do not think there is a constitutional crisis. That is just a claim by a few people. By IEBC doing the review, citizens will get an equitable share from the national government. In the review, we may see a rise of new constituencies or some being merged and others split,” he states.

IEBC is required to conduct a review of the names and boundaries of constituencies and wards at intervals of not less than eight years, and not more than 12 years, but any review shall be completed at least 12 months before a general election.

“The Commission shall review the number, names, and boundaries of wards periodically. 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,” the Constitution states.

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During the retreat of members of Parliament in Naivasha last week, National Assembly Speaker Moses Wetang’ula stated that the delimitation process is among the biggest casualties of the delayed reconstitution of the electoral agency.

Wetang’ula noted that while the delayed reconstitution of IEBC has hindered the timely conducting of by-elections in various constituencies and wards, he also stated that it may be impossible to create additional constituencies.

“The delay in the reconstitution of IEBC stalled crucial activities, including boundary delimitation, which is vital for the country’s electoral system, as well as the timely conduct of by-elections in constituencies and wards that have experienced vacancies,” Wetang’ula remarked.

“It is indeed also true the delay in the reconstitution of IEBC, we have lost a lot of time because of being embroiled in court. We do not know whether there will be a possibility in the boundaries delimitation once the new commissioners assume office,” he added.

Currently, there are 11 electoral areas in need of by-elections for the National Assembly; with seven pending by-elections arising from the deaths of areas Members of County Assemblies (MCAs) while others resulted from President William Ruto elevating former Ugunja MP Opiyo Wandayi to Cabinet, ODM also need to fill the vacancy left by former Nominated MP John Mbadi, who similarly joined the “broad-based” Cabinet.

The nine-member IEBC selection panel which was sworn in on Monday last week gave a maximum of 85 days to see the IEBC chairperson and Commissioners in office.

The panel includes Kiome Lindah Gakii, Oloo Adams, James Evans Misati, Nicodemus Kipchirchir Bore, Koki Muli Grignon, Carolene Kituku, Tanui Andrew Kipkoech, Nelson Makanda, and Fatuma Saman; with Nicodemus and Kiome being the Chairperson and Vice-Chairperson respectively.

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