Boundaries disputes in court could derail plans for General Election

Even as the electoral commission fights for more money to run the coming elections, numerous court cases contesting new constituency boundaries present a logistical nightmare for the team, and the March 4, 2013 election date is also in dispute.

Some activists have moved to the Court of Appeal seeking to quash the date. They argue that a constitutional court declaration that the elections be held next year was reached through faulty interpretation of the law.

There are about 100 unresolved court cases challenging the review of boundaries that created 80 new constituencies and tens of wards.

The cases were filed before the April 5 deadline set by the Constitution for Kenyans dissatisfied with the proposed boundaries to seek court intervention.

The Independent Electoral and Boundaries Commission (IEBC) published the new voting zones on March 6. The courts have until July (three months) to hear and determine the disputes.

The concern here is that the cases have far-reaching implications for the commission’s preparations for the General Election.

First, it would be unconstitutional for the country to go to the polls without the additional constituencies.

Secondly, unless resolved in good time, the disputes would delay the registration of voters.

Moreover, Parliament would still have to address concerns of former Justice and Constitutional Affairs minister Mutula Kilonzo that the law must be amended to allow participation of the new constituencies in the next election.

The minister, who had drafted a constitutional amendment and tabled it Parliament, argued that, ideally, the new constituencies should have been in place by end of February this year.

Twelve years

Article 89(2) of the Constitution says: “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.”

Though the transition provisions exempted the ongoing review from the 12-month requirement, the Senior Counsel, Mr Kilonzo, pointed out that there is another challenge.

Section 27(3) of the Sixth Schedule says that the requirement in Article 89(2) will not apply to the review of boundaries preceding the first elections under this Constitution.

But even with this, Article 89(4), which is not accommodated in the transitional provisions, remains a barrier, says Mr Kilonzo.

It says: If a general election is to be held within 12 months after the completion of a review by the Commission, the new boundaries shall not take effect for purposes of that election.

This is the discrepancy Mr Kilonzo sought to fix by proposing amendments to Section 27 to say that requirements of Article 89(4) will not apply in the first elections under the new Constitution.

A report of the Constitutional Implementation Oversight Committee led by Mandera Central MP Abdikadir Mohammed will this week table public views on the Mutula amendment.

But Mr Mohammed argued that since the Constitution already decrees that “there shall be 290 constituencies for purposes of elections” the Mutula amendment was unnecessary.

“It means that the new constituencies will automatically take part in the next election,” he said on Saturday.

Mr James Oswago, the IEBC chief executive, said they will await the decision of the courts on the boundaries disputes. He indicated that once the boundaries are accepted, the IEBC will embark on countrywide voter registration.

“The new Constitution created 80 new constituencies, which forces us to register afresh despite having spent Sh5 million in 2010 registering voters,” he told the Sunday Nation from Mombasa where he was attending a conference on poll financing.

Most of the boundaries disputes arose in regions where political mobilisation revolves around clans, particularly in North Eastern, Kisii and the coastal regions.

While some residents accuse the commission of ignoring their views, others have contested the creations of wards, marking of boundaries, splitting of certain constituencies, “ownership” of resources and the names of the new electoral units.

On April 11 the High Court issued orders freezing creation of the new constituencies pending the outcome of a suit contesting the review.

At nine cases, Garissa County leads with the highest number of boundary disputes before court, followed by neighbouring Wajir and Kisii in Nyanza with six cases each.

The proposed boundaries of Lafey and Mandera North constituencies in Mandera County have elicited five court cases.

In Garissa, the cases touch on the proposed Dadaab, Balambala as well as Dujis, Lagdera, Ijara and Fafi constituencies.

In Western province, five cases have been filed in Kakamega county by Malava, Lurambi and Mumias constituents.

The other counties with a high number of cases include Bungoma where some residents have disputed the boundaries of the proposed Webuye West, Sirisia and Kabuchai constituencies as Mt Elgon.

Two cases have been filed in Deputy Prime Minister Musalia Mudavadi’s Sabatia constituency.

Those opposing the new boundaries are against the transfer of some wards from the constituency to the neighbouring Emuhaya, the home of Speaker Kenneth Marende.

In Wajir County, the conflict revolves around Wajir North, East, South and central constituencies.

Ignoring proposals

Nominated MP Mohammed Affey has accused the commission of ignoring proposals by residents of Wajir South to split the constituency in two. They suggested creating Habaswein constituency.

“At 24,000 square kilometres, we are the largest constituency in North Eastern Province and share the longest boundary with Somalia,” he says.

Elsewhere, disagreements over the proposed Borabu constituency in Nyamira County and Gucha in Kisii, which was hived off Public Works minister Chris Obure’s Bobasi constituency and the neighbouring Bomachoge have taken a different turn.

Initially, four wards from Bobasi were transferred to Gucha, but Bomachoge residents opposed the review and name of the new constituency.

They wanted Bomachoge to be split in two: Bomachoge Chache and Bomachoge. Bomachoge residents said they did not want to share a constituency with their Bobasi neighbours.

They had their way; now the dispute is over the distribution of wards (clans) in the two constituencies.

And in neighbouring Nyamira county, residents of Kitutu Masaba are opposed to the transfer of some wards from the new Borabu constituency that was part of North Mugirango.

Five Kitutu Masaba wards, with a population of 60,000, were moved to Borabu. The bone of contention is Kiang’eni location. Locals say the court had earlier ruled that Kiang’eni be part of Borabu, yet it remains in North Mugirango.