BWOMANGA: From Crisis to Resolution: Kenya's Electoral Boundary challenge

Kenya is currently grappling with a significant constitutional crisis stemming from the delayed review of electoral boundaries. 

The Independent Electoral Boundaries Commission (IEBC) finds itself in a precarious position, unable to fulfill its mandate due to the absence of commissioners. 

This situation has led to legal uncertainties and potential threats to political stability and electoral integrity.

According to Article 89(2) of the Kenyan Constitution, the IEBC is required to review the names and boundaries of constituencies every 8 to 12 years.

The last review was conducted in March 2012, making the March 2024 deadline critical. However, this deadline has already passed, and the IEBC is currently without commissioners following the exit of key figures and the removal of others in early 2023.

The Attorney General has warned that failing to conduct the delimitation exercise could lead to legal challenges and compromise political stability.

The IEBC has sought an advisory opinion from the Supreme Court on whether it can proceed with the delimitation process in the absence of commissioners and if the constitutional timelines can be extended. This request underscores the urgent need for a resolution to avoid further constitutional and political crises.

The absence of commissioners has stalled the IEBC's ability to conduct by-elections, leaving several electoral areas without elected representatives.

This not only undermines the democratic process but also denies citizens their constitutional right to representation.

Taxpayers in these areas are left without a voice in legislative matters, which can affect local governance and resource allocation.

Currently, constituencies such as Banissa and Magarini, along with several wards, are awaiting by-elections.

Constitutional lawyer Bobby Mkangi has highlighted the gravity of the situation, stating, “We will be violating our own Constitution yet we have no war or serious disaster that can amount to a crisis to delay the process.”

He emphasizes that a simple resolution by Parliament cannot sidestep the constitutional requirements.

Similarly, counsel Kamotho Waiganjo has pointed out that extending the timeline "only sidesteps the issue" and does not address the underlying constitutional quagmire.

He warns that the 2027 elections might not meet constitutional thresholds if the current issues are not resolved.

Prof Yash Pal Ghai, a former chairman of the Constitution of Kenya Review Commission, suggests that the courts might need to intervene.

He states, “The courts could already hold that the 'doctrine of necessity' applies, and approve an extension.”

This perspective underscores the potential role of the judiciary in navigating this crisis.

In response to the crisis, there are proposals to bring back former IEBC chair Wafula Chebukati and his team to avert the situation.

Additionally, some MPs are pushing to extend the delimitation deadline to ensure fair representation and accommodate unforeseen circumstances.

Thika Town MP Alice Ng'ang'a has introduced a proposal to amend the Constitution to protect 26 constituencies that risk being merged due to not meeting the population quota.

It is imperative that the government and relevant authorities address this issue promptly.

The Supreme Court's guidance will be crucial in navigating this complex situation and restoring confidence in Kenya's electoral system.

Ensuring the integrity of the electoral process and upholding the principles of fair representation are essential for maintaining political stability and social cohesion.

Kenya's current constitutional crisis highlights the importance of timely and effective electoral boundary reviews.

The IEBC's inability to conduct the delimitation exercise due to the absence of commissioners poses significant legal and political challenges.

The Supreme Court, the government, and other stakeholders must work together to resolve this issue and ensure the integrity of Kenya's electoral process.

By Nyangenya Bwomanga – Eminent Peace Ambassador UN