The stalemate over new constituencies that has paralysed Kenya’s efforts to effect the new Constitution is set to intensify after a court ruled on Friday that they were not created in line with the set out law.
Consequently, the court said that the orders barring the gazettement of the 80 constituencies, issued by Justice Jeanne Gacheche, will remain in force.
The ruling by Justice Daniel Musinga came on a day of a hardening of positions between the two sides of the coalition government.
Prime Minister Raila Odinga is said to have skipped a Cabinet committee meeting that was supposed to be attended by President Kibaki at Harambee House.
MPs supporting the list on Friday said the Judiciary’s intervention to block the list was unconstitutional.
But their opponents, mainly from PNU, said Ligale was unfair in the distribution of the new units.
On Thursday, Parliament rejected a list of nominees presented by President Kibaki and Prime Minister Raila Odinga to serve on the implementation and revenue allocation commissions.
Block the names
Although MPs said the list lacked regional balance, a group of 169 had earlier vowed to block the names unless the constituencies are gazetted.
It had been hoped that Justice Musinga could rule in favour of the Ligale team to help unblock the stalemate.
But the judge instead found that Mr Ligale’s Interim Independent Boundary Review Commission did not fully comply with the law in coming up with the constituencies.
According to the judge the commission ought to have clearly determined the physical boundaries of the new constituencies.
“Without clear borders it is impossible to know the basic information like the number of voters in the constituency,” said the judge.
The IIBRC was however favoured by the ruling when the judge declared that the three commissioners were in office legally and should remain in office until the expiry of the team’s mandate.
The three Mr Ligale, Ms Rozah Buyu and Ms Irene Masit were accused of occupying the offices illegally because they were involved in politics in the recent past.
The commission’s tenure is expected to end today and it had through chairman Ligale moved to court to lift orders issued against it.
In the orders issued by Lady Justice Jeanne Gacheche the commission was barred from gazetting the additional constituencies from the existing 210 electoral units.
The orders were issued after a businessman moved to court to block the publishing of the new boundaries.
Chief Justice Evans Gicheru had then appointed Justice Musinga to hear the case.
Justice Musinga also dismissed the arguments by the petitioner, Mr John Kimanthi, that IIBRC had no mandate to gazette new constituencies.
In his argument the petitioner had told the court that the commission’s mandate was only to recommend to the National Assembly the proposed boundaries.
In the ruling the Judge stated that Ligale and his team had the mandate to recommend and publish the new units. According to the judge the team had a mandate to make the recommendations according to the density of population to ensure adequate representation.
On the issue of consultation, the judge expressly said, “IIBRC is mandated to do its duties without any control from the three arms of government but must be subject to the rules of the Constitution.”
The judge in his ruling also warned of possibilities of chaos between voters if IIBRC publishes the new constituencies without clear borders.
On Friday, MPs supporting the Ligale list the Judiciary flouted the law when it accepted to handle cases challenging the work of the commission.
They argued that article 41B(8) of the Constitution of Kenya (repealed) Act, whose provisions are extended under the new Constitution emphasised the independence of the IIBRC.
Deputy Speaker Farah Maalim said that if that part is read together with the provisions of the new Constitution that the boundaries team will have to gazette its findings, then it became clear that “no authority, not even Parliament can interfere with the work of the commission”.
Mr Isaac Ruto (Chepalungu, ODM) added: “It is very clear that there has been interference on the functions of this commission. We view this as a very grave violation of the constitution by the Executive, and this government is scuttling the very implementation of the new Constitution.”
A high level meeting called to try to diffuse the crisis aborted in the last minute at Harambee House.
It is understood that Mr Odinga called off the meeting in which the President was also to attend, citing events in Parliament on Thursday night.
Insiders said Mr Odinga proposed instead, that the meeting, which was to discuss an updated list of new constituencies be pushed to Monday.
But their PNU counterparts including Vice President Kalonzo Musyoka attended and held their own meeting on “the way forward’’ in the constituency boundary row.
It is understood that the PNU group resolved that new boundaries be re-worked by a new team. They argued that as the Ligale lists appeared to favour ODM strongholds.