Boundaries ruling may delay elections

Even as the High Court delivers its ruling on more than 100 challenges to the proposed new constituency tomorrow, there are growing fears that possible appeals may delay preparations for the election and affect the date.

The Sunday Nation has learnt that the Interim Independent Electoral and Boundaries Commission (IEBC) has been meeting with lawyers for the last two weeks in anticipation of possible appeals.

The argument here is that given the nature of boundary disputes, ranging from the sharing of resources, distribution of wards and clan interests, it is highly unlikely that all the aggrieved parties will be satisfied with tomorrow’s ruling.

Seek orders

The fear is that an aggrieved party could move to court after the ruling and seek orders to stop IEBC from, say, registering voters in a given constituency until their appeal is heard.

The IEBC Act provided a three-month window for resolution of disputes relating to the review. It did not factor in possible appeals.

The boundaries cases affect more than half of the 80 new constituencies, and until they are resolved, the IEBC calendar for the elections hangs in the balance.

Commission CEO James Oswago told the Sunday Nation that they had been holding consultative meetings in anticipation of the ruling that could force it to revise its work plan.

But Mr Oswago was optimistic the court would rule in its favour.

“We hope the court will not rule that we were wrong and that there is a need to start all over again. However, we are exploring all possible scenarios,” he said.

“We did not envisage any appeals. We anticipated a situation where the High Court decision on the disputes would be final to allow the commission to carry out its mandate and the country to move forward,” said Mandera Central MP Abdikadir Mohammed, who chairs the House committee on implementation of the Constitution.

Mr Mohammed, a lawyer, says the decision will give the commission a free hand to continue with registration.

“The process of delimitation of boundaries concludes with the 90-day period. After that the commission will go to the market, declare the new constituencies and start registering voters.” His argument is that an appeal would be “outside” the review process.

Mr Eric Mutua, the Law Society of Kenya chairman, says though not expressly, the Act “technically takes away the right of appeal” to bring closure to the process.

“An individual can appeal the verdict, but the decision will be seen as outside the process as captured in the Act,” said the LSK chairman who, however, indicated that there is no barrier to further court action.

Other than the issue of boundaries and elections, there are at least five other cases pending in the courts. These cases can significantly affect the electoral process because IEBC cannot commence a number of electoral processes and activities.

Elections expert Ms Koki Muli says one of the applications wishes to halt the withdrawal of budgeted funds without an Appropriation Bill 2012. This can delay funding the IEBC and as a result derailing its operations.

“The IEBC is critically running out of preparation time if elections are to be held in the fifth year or even five years after the swearing in of Parliament.