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The Independent Electoral and Boundaries Commission (IEBC) is facing a significant constitutional crisis as it seeks an advisory opinion from the Supreme Court regarding the conduct of a boundary review in the absence of commissioners. The decision, set to be delivered by Chief Justice Martha Koome, follows an application by the IEBC to prevent further legal complications due to the expiration of the timelines for the review.
Boundary Review Deadline Missed
According to the IEBC, the law required a delimitation of constituencies and wards to be completed between March 6, 2020, and March 6, 2024. However, the IEBC has been unable to fulfill this mandate within the stipulated period. The court is expected to rule on whether the commission can proceed with the delimitation process without the necessary number of commissioners, or if it can delay the timeline further.
In addition to this, the court will consider whether the IEBC is legally allowed to conduct elections in constituencies and wards that currently lack representation due to the nomination of MPs to the Cabinet and the death of some representatives. Another significant issue under review is the fate of 27 constituencies that are at risk of being removed from the electoral map due to failing to meet the revised population threshold.
Legal Opinions on the IEBC’s Ability to Proceed
The issue has sparked varied opinions among legal experts. Senior Counsel Abdikadir Mohamed has argued that the IEBC should be permitted to continue its work despite the lack of commissioners, asserting that the commission should not be at a standstill. Mohamed further questioned whether the secretariat could carry out the tasks in the interim and whether the timelines could be extended for the boundary review process.
“If we stay without commissioners until the next general elections, are you saying that we cannot hold elections? Whoever is there must be able to act and continue, that is what good order is about,” Mohamed said.
Government’s Concern Over the Constitutional Crisis
The constitutional dilemma is also a cause for concern among government officials. Environment Cabinet Secretary Aden Duale has called on Parliament to seek an advisory opinion from the Supreme Court to clarify the role of lawmakers in resolving the situation.
The boundary review process is particularly critical as it involves adjusting the population threshold for constituencies. Previously set at 72,000, the new law proposes a minimum of 162,000 residents per constituency, which would lead to the scrapping of 27 constituencies that currently fail to meet the new standard.
New Appointments to the IEBC Panel
Amid this crisis, President William Ruto recently appointed nine new members to the IEBC panel, including Kiome Lindah Gakii, Oloo Adams, James Evans Misati, and Fatuma Saman, among others. These appointments are part of efforts to address the leadership vacuum at the IEBC and ensure the commission can function effectively despite the ongoing challenges.
The Supreme Court’s ruling next week is expected to provide critical clarity on whether the IEBC can proceed with its boundary review process and elections despite these legal hurdles.
