Tide against new voter regions rises as storm gathers in court

Saturday November 20 2010

By RICHARD MUNGUTI [email protected]

The creation of 80 new constituencies by the Interim Independent Boundaries Commission (IIBRC) has sparked a flurry of litigations.

The latest entrant in the legal fray over the new constituencies is Ndaragwa Member of Parliament Jeremiah Ngayu Kioni.

His case is the third suit in which litigants have been granted orders suspending the publication of the 80 new constituencies in the Kenya Gazette.

Judicial Review and Constitutional Division head Lady Justice Jeanne Gacheche prohibited the publication of the new electoral boundaries announced by IIBRC on November 15, 2010.

Justice Gacheche allowed Mr Kioni to prosecute the case aimed at prohibiting IIBRC from publishing the new boundaries, saying it has no legal mandate.

The country will have 290 constituencies if IIBRC proposals are adopted. In the suit filed by Mr Kioni before Justice Gacheche on November 17, 2010, the lawmaker says the Andrew Ligale-led commission should have presented to Parliament the proposals for action instead of presenting it directly to the Government Printer.

Mr Kioni is also challenging the composition of the commission saying Mr Ligale is not eligible to head it because of his political roles in the past.

Justice Gacheche ordered Mr Kioni to serve the suit papers on IIBRC and return before her on December 2, 2010, for inter partes hearing.

Mr Kioni joins businessman John Kimathi Maingi and 11 MPs – Ephraim Maina, Johnstone Muthama, William Kabogo, David Musila, Cecile Mbarire, Ferdinard Waititu, H. Gaichuhie, Peter Kenneth, Mwangi Kiunjuri, Simon Mbugua and Njoroge Baiya – in challenging the commission’s move.

All the litigants allege their constitutional rights have been violated by the decisions made by commission on the new boundaries.

They are therefore asking the court to intervene and invoke its inherent jurisdiction in enforcing the law over creation of the new constituencies.

All the 14 litigants got the ear of the Judiciary and their pleas allowed. Justice Gacheche directed the case by the 11 MPs be heard on November 25, 2010.

But the IIBRC has not taken the legal onslaught lying down. It has fought back saying its term expires next Saturday and that it should be allowed to complete its mandate.

Lawyer Pheroz Nowrojee appeared before Lady Justice Gacheche with an application seeking to set aside the orders granted to Mr Maingi saying it was an affront to justice since it has a few days remaining before expiry of its term in office.

Mr Nowrojee told the judge that her orders were hurting the IIBRC and sought to set it aside. He also asked the judge to disqualify herself from the case.

Instead Justice Gacheche referred the case to the Chief Justice Evan Gicheru for directions. The CJ will mention the case tomorrow for further directions.

Both IIBRC and the Interim Independent Electoral Commission (IIEC) will have their terms in office expire on November 27, 2010.

The MPs state that “Hon Andrew Ligale has refused, neglected, ignored and or otherwise failed to resign from membership of the IIBRC in spite of knowing or having reasonable grounds to know that he is no longer qualified to hold that office because he was a member of Parliament for Vihiga from 2002 to 2007.”

Mr Kioni says stakeholders were not consulted before the carving out of the new constituencies.