The Supreme Court is poised to deliver an advisory opinion on Monday regarding the Independent Electoral and Boundaries Commission’s (IEBC) ability to conduct a boundary review without a full commission in place.
The country is currently facing a constitutional dilemma, as the law mandates that the boundary review should have been completed by March of the previous year.
The advisory opinion, which will be delivered by the Supreme Court, comes after IEBC sought clarification to avoid further constitutional challenges.
The commission has argued that, according to the law, it was supposed to complete the delimitation of constituencies and wards between March 6, 2020, and March 6, 2024 a maximum period of 12 years since the 2012 delimitation order.
However, the IEBC has not been able to conduct the boundary review within this time frame.
As per the documents submitted to the Supreme Court, the IEBC noted, “IEBC was required to conduct the delimitation of constituencies and wards between 6th March 2020 and 6th March 2024, but has not been able to undertake the process within the set timelines.”
The court is also set to advise the IEBC on whether it can proceed with elections in constituencies and wards that have lacked representation for months due to the nomination of some MPs to the Cabinet and the deaths of their representatives.
Additionally, the Supreme Court will address the issue of 27 constituencies that are slated to be eliminated from the country’s electoral map.
Legal experts and constitutional lawyers have expressed differing opinions on the situation, with some suggesting that the IEBC should be allowed to proceed with its functions despite the absence of commissioners.
Senior counsel Abdikadir Mohamed argued that the commission, in its current state, should be able to continue its work.
He emphasized that even if commissioners are absent until the next general elections, the existing structure should still be able to function.
“Whoever is there must be able to act and continue that is what good order is about,” Mohamed stated.
He further questioned whether the timelines could be extended to accommodate the process, and whether the IEBC secretariat could undertake the boundary review without a full commission.
“My view is that the commission is not just the commissioners,” Mohamed added.
Meanwhile, Environment Cabinet Secretary Aden Duale weighed in on the constitutional crisis, calling for Parliament to seek its own advisory opinion from the Supreme Court on how it can help resolve the issue.
The legal and constitutional debate centers on the revised law that stipulates a constituency must have a minimum population of 72,000.
The ongoing boundary review is proposing to raise the threshold to 162,000, which would lead to the removal of 27 constituencies that do not meet the new criteria.
In a related move, President William Ruto appointed several individuals to the IEBC panel last Monday, including Kiome Lindah Gakii, communication professional Oloo Adams, and ambassador Koki Muli, among others.
As the Supreme Court prepares to issue its opinion, all eyes are on how this legal guidance will affect the future of the boundary review process and the looming constitutional challenges facing the country.
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