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.

These delays may also lead to a constitutional crisis if elections are not held within the constitutional timelines – as the terms of the President, and other Members of Parliament and Local Authorities expire before the next elections are held,” says Ms Muli.

Mr Oswago said that they had anticipated the court process would end with the determination by the High Court but following consultations with attorney general Githu Muigai and Commission on Implementation of the Constitution chairman Charles Nyachae, it was clear that tomorrow may not the end of the judicial process.

Supreme court

However, the parties may seek to have the ruling overturned at the Appeal Court or the Supreme Court.

“What will now matter is if the Appeal or Supreme Court judges will allow IEBC to continue with its works pending the determination of the case. I cannot reveal what we are planning but we will ensure that we are able to plan the elections properly,” Mr Oswago said.

Attorney General Githu Muigai has said that he has been consulting with various government agencies including the judiciary to provide enough time to allow appeals on the imminent ruling.

The AG insists that the people’s right of appeal cannot be denied though the law does not provide for it.

It would be unconstitutional for the country to go to the polls without the constituencies. And unless solved in good time, the disputes will delay the registration of voters.

The IEBC plans to carry out the voter registration in August with the compilation, inspection and certification of the register happening in the next three months respectively.

According to Mr Oswago, the IEBC has put together the mechanism for voter registration and is only held back by the cases.

When it announced the March 4, 2013 election date, the IEBC gave a timeline that was advised by legal requirements that have to be met before the polls are held. Key among them is that it cannot hold an election without a new voters’ register, which is also tied to the new boundaries.

The Registrar of Political Parties also has the task of confirming final political party membership at least three months before an election.

Political parties must also submit their party membership list to the Registrar by October and complete party nominations by the second week of January next year, if the elections are to be held in March.

Parties cannot present nominees who are not registered as voters.

Moreover, Parliament would still have to address concerns by former Justice 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 in Parliament argued that ideally, the new constituencies should have been in place by end of February.

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 has pointed out another a 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 the new 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 twelve 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 cure by proposing amendments to Section 27 to say that requirements of Article 89(4) will not apply in the next election.

However, Mr Abdikadir argues that with the Constitution having already decreed that there shall be 290 constituencies for purposes of election, the Mutula amendment is unnecessary. (READ: Boundaries disputes in court could derail plans for General Election)