The country could be caught in a constitutional crisis as the deadline for review of electoral boundaries looms amidst the standoff between President William Ruto and Azimio leader Raila Odinga over appointing commissioners to the electoral agency.
Article 89(2) of the 2010 constitution requires the Independent Electoral and Boundaries Commission (IEBC) to “review the names and boundaries of constituencies at intervals of not less than eight years, and not more than 12 years”, and the same should be completed at least 12 months before a General Election. In addition, the Commission is required to review the number, names and boundaries of wards periodically.
The constitution requires the commission to carry out the boundary delimitation to factor in periodic population growth to ensure equitable distribution of resources ranging from constituency development funds to government facilities. The expected review will be guided by the 2019 census that placed the population at 47.5 million.
During the last review, a constituency was defined by a population quota of 132,138. Article 89(5) states, “The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota….”
The last review, initially led by the defunct Interim Independent Boundaries Review Commission (IIBRC), was concluded in March 2012, meaning the current review should have taken place at the earliest in 2020.
The latest IEBC should conclude the exercise is March 2024. Yet as it stands, with just eight months to the deadline, the Commission cannot start the process without Commissioners.
The Commission is currently operating without commissioners after the terms of former Chairperson Wafula Chebukati and commissioners Boya Molu and Prof Abdi Guliye ended in January this year. Meanwhile, Vice Chairperson Juliana Cherera and commissioners Justus Nyang’aya and Francis Wanderi resigned rather than face a tribunal that President Ruto had formed to investigate their conduct during the August 2022 presidential election. Their colleague, Irene Masit, was removed by the tribunal.
That left the IEBC without commissioners who were supposed to lead the delimitation of boundaries.
The opposition coalition vehemently opposed attempts to replace the commissioners; Azimio accused the Kenya Kwanza government of hijacking the process by appointing their cronies to the selection panel, which should carry out the recruitment of new commissioners.
Following violent protests led by Mr Odinga, President Ruto agreed to talks with the opposition over recruiting IEBC commissioners. That saw the selection panel slow down the process. However, the talks broke down at the preliminary stage even before the teams appointed by the respective coalitions could discuss substantive issues.
The recruitment of the new IEBC commissioners has stalled, and there is no indication when the Selection Panel will conclude its work.
As the delimitation of boundaries is a policy matter, the IEBC secretariat cannot initiate the process.
Moreover, the issue of resources for the boundaries exercise is also a thorny issue. The Commission had requested Sh7.2 billion for boundary delimitation over and above the regular budget, yet National Treasury only allocated Sh4.5 billion in the 2023/24 budget.
The Sh7.2 billion was supposed to go towards financing wages (Sh1.1 billion), equipment (Sh0.6 billion), legal fees (Sh1.3 billion) and ICT (Sh0.4 billion).
Others are capacity building (Sh0.3 billion), post-review voter registration (Sh1.2 billion), public education and partnership (Sh1.2 billion) and communication (Sh1.1 billion).
Going by the events leading up to the current constituency and ward boundaries and names, delimitation is a hotly contested political affair, and the remaining eight months may be too little to conduct the exercise and deal with the disputes that will undoubtedly arise. Arising for the 2012 review, some of the suits filed to challenge the delimitation were only resolved in the 2017 elections.
While the constitution sets the number of constituencies at 290 and IEBC cannot create additional ones, the commission can vary boundaries. IEBC is also empowered to create new wards, varying boundaries and names. There are currently 1,450 wards.
Any move the Commission makes in terms of delimitation of boundaries will be keenly watched as it will have major political, social and economic consequences; thus, the process requires time.
The Mount Kenya region already wants the IEBC to ensure that their demand for one man-one vote-one shilling is entrenched. The region has often complained that their people miss out on government services because of the concentrated population.
As such, they have been calling for creating of new constituencies and wards. In addition, they want the retention of 27 protected constituencies created in 2012 despite not meeting the population quota of 132,138 per constituency.
The 27 consist of Lamu East, Lamu West, Mvita, Voi, Wundanyi, Mwatate, Galole, Bura, Isiolo South, Samburu East, Laisamis, North Horr, Saku, Kilome, Mukurweini, Mbeere North, Mathioya, Ndaragwa, Budalang’i, Vihiga, Othaya, Mathioya, Kangema, Marakwet East, Keiyo North, Tetu and Mogotio.
The constitutional provision for the population of a constituency is that it must be higher or lower than the quota by 40 per cent for cities and sparsely populated areas, and 30 per cent for other areas.
For IEBC, the other headache would be handling these protected constituencies, especially if their population still does not meet the quota.
Besides the population, Article 89(5) states that the other parameters for boundary delimitation are geographical features and urban centres, communities of interest, historical, economic and cultural ties, and means of communication.
In 2020 when IEBC ought to have started the delimitation, the exercise stalled as Covid-19 swept across the globe. As such, any planned fieldwork was never undertaken. Instead, most commissions did a desk review while visitations to constituencies for meetings with stakeholders and the public were halted.
The year after, 2021, was marked with high political activity as politicians began campaigns in earnest ahead of the 2022 General Election. IEBC also got consumed with preparations for the elections, and the boundary review was put on the back burner.
The situation only got worse after the exit of all commissioners, leaving IEBC with just the secretariat.
Even if the Selection Panel would conclude the recruitment today, the new commissioners must be vetted before they take office. In any case, they will need time to settle down in their offices before embarking on such a charged political exercise. It means IEBC will have minimal time to conduct the review and submit its report to parliament for adoption.
It is unclear what would be the consequence of failing to meet the constitutional deadline for boundaries review. The language of Article 89(2) is ‘shall’, which makes it mandatory for IEBC to conduct the review within the stipulated time.
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