The chances of going to the 2022 General Election with new constituency and ward boundaries are growing slimmer as financial, legal and administrative challenges pile up against the Independent Electoral and Boundaries Commission (IEBC).
On February 14, IEBC chairman Wafula Chebukati announced that the commission had developed the Boundaries Review Operations Plan (BROP) and that it was set to start implementing it, raising hopes that the exercise could start in March.
That now looks highly unlikely after IEBC admitted that the exercise cannot begin any time soon as they do not have the funds.
The commission also says they are yet to get official census data from the Kenya National Bureau of Statistics (KNBS), more than a month after the bureau released a breakdown of the 2019 population and housing census results.
Furthermore, a key law – the Independent Electoral and Boundaries (Amendment) Bill, 2020 – which “seeks to amend section 36 of the Independent Electoral and Boundaries Commission Act to reintroduce the Fifth Schedule to guide the delimitation of electoral boundaries”, is still far from being enacted. A draft of the Bill was shared with the Justice and Legal Affairs Committee (JLAC) of the National Assembly about two weeks ago at a meeting in Mombasa.
“The commission has to date neither received the funding nor census data. Implementation of BROP depends on the availability of funds and census data to the commission,” the commission’s acting CEO Hussein Marjan said.
By law, review of the boundaries should be completed at least a year to the general election, meaning that if we have to go the 2022 elections with new boundaries, then the commission should wrap up the exercise by July 2021.
Article 89 of the constitution requires the commission to review names and boundaries of constituencies at intervals of not less than eight years and not more than 12. Further, the commission is mandated to review the number, names and boundaries of wards periodically.
According to Mr Marjan, the implementation of the review plan will only start this financial year if the commission receives a supplementary budget.
“Otherwise, the commission will rely on its allocated budget of Sh400 million for the financial year 2020/21 and shall thereafter engage National Treasury for any additional funding,” he said.
In the Budget Policy Statement (BPS) 2020, National Treasury has allocated Sh421.2 million to IEBC for boundaries delimitation in the 2020/21 financial year. The BPS also shows that IEBC received Sh101.3 million for the boundaries delimitation in the current financial year.
Mr Chebukati has in the past complained of inadequate funds hampering procurement and training of staff in readiness for the sensitive and politically charged boundaries review.
Though the next financial year starts on July 1, it takes quite some time for things to settle down. By the time the commission is done with the procurement and training of staff, they could just be left with months to the July 2021 deadline if the review is to be used in the 2022 elections.
In terms of census data being a challenge, KNBS and IEBC have been at loggerheads after the former asked IEBC for technical boundaries information so that they could populate data for the political boundaries.
At the launch of the second round of population results in February, National Treasury Cabinet Secretary Ukur Yatani said IEBC has frustrated efforts in providing information on geopolitical units.
“I am once again appealing to the IEBC to co-operate and be part of this journey. By now, we should have concluded all the reports involving the 2019 census were it not for the frustration by the IEBC, which is yet to provide the required information on political units,” Mr Yatani said.
But in a rejoinder, Mr Chebukati said: “Boundaries delimitation is an express mandate of the commission. It is not clear whether the delay in receiving official data could have anything to do with this dispute.”
Among the parameters available to IEBC to delimit boundaries, population is key and without the data from KNBS, the review cannot take place. In the first delimitation, every constituency was to have an average of 133,138 people with the exception of cities, which could have 40 per cent above this figure while sparsely populated areas could have 40 per cent less. Following the release of the 2019 Kenya Population and Housing Census results, which showed that there are 47.6 million Kenyans, the population quota per constituency is likely to rise to approximately 164,000 with exceptions for cities and sparsely populated areas.
In reviewing the boundaries, IEBC is also required to take into account the geographical features and urban centres, community of interest, historical, economic, and cultural ties and means of communication.
According to Election Observations Group (ELOG) coordinator Mulle Musau, without money and census data, IEBC is impotent in so far as boundaries delimitation goes.
“We need IEBC to be in harmony with Parliament, National Treasury and other stakeholders whose input in the process is important. There needs to be a political settlement over the delimitation so that we can move forward as a country,” said Mr Musau.
Regarding the legal framework for boundaries delimitation, IEBC and Parliament would have to fast-track the Independent Electoral and Boundaries (Amendment) Bill, 2020, for it to be ready when the exercise starts.
If push comes to shove, Mr Marjan says, they will have to use the existing laws with their shortcomings.
“Since it is not certain when amendments to the law will be concluded, the commission will rely on the existing laws to undertake the exercise,” the acting commission CEO said.
Already, some politicians have called for the commission, considering these roadblocks, to use the 12-year deadline instead of the eight-year period in the review of the boundaries.
“Since the constitution allows the IEBC to do the boundaries review either using the eight years as the minimum and the 12 years as a maximum, we suggest that they use the 12-year period which will mean that the boundary review will come after the next general election. Doing it now, with the real possibility of a referendum in the corner, and the general election barely two years away, will be too emotive. They won’t have broken any law if they did it and finished it by 2024,” Wiper party vice chairman Mutula Kilonzo Jr said.
It is a view shared by former IEBC commissioner Thomas Letangule, who says the post-2022 polls would be best when political emotions have subsided.