Boundaries disputes in court could derail plans for General Election

• Even with the date for polls set and the budget for the exercise ready, court cases could still stand in the way

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.