How court cleared way for elections

By Judy Ogutu and Isaiah Lucheli

The special court on constituency boundaries and names disputes removed the last barrier to elections through what can easily pass as judicial Solomonic Wisdom.

The five-judge bench retained all the 80 new constituencies as they are, along with the names of the total 290 constituencies.

But they at the same ruled in favour of lawyers seeking change of some electoral ward names and transfer of some of these smaller representation units to the neighbouring constituencies.

But what will go down in Kenya’s judicial history is how the judges killed any further litigation that could delay the coming elections by giving their ruling on the last day within which the Constitution allows the boundaries to be contested.  

What it means, therefore, is that the Judges gave a ruling that would go unchallenged on the basis of time lapse, since it was given on the last day of the 90-day window.

This means that the Independent Electoral and Boundaries Commission (IEBC) can now go ahead with voter registration and allocation of polling stations, since it is now clear which ward is in which constituency and what the final names of the wards and constituencies will be.

It had been impossible for IEBC to plan for the elections because of the 137 cases lodged against the creation of the new constituencies that were early this year announced by the polls body.

The team led by Mr Isaack Hassan will now roll out its election progragme that would culminate in elections in March next year without fear of any further inhibition.

This includes voter registration in all the 290 constituencies, which all retained the names they had been given, and also compilation of a voter register that would be used in Kenya’s first national poll under current constitution.

The key feature of the coming elections is the devolved model of governance that comes with the elective positions of senator and governor for each of the 47 Counties, as well as women representatives for each of the units.

High Court Judges Mohamed Warsame, Ruth Sitati, Pauline Nyamweya, Hellen Omondi and David Majanja sat for more than eight hours as they read the 364 paged judgment in turns.

The petitions, which were heard in Nairobi, Kisii, Kakamega and Mombasa, had been filed in various parts of the country.

IEBC appeared to have carried the day as most of the petitions challenging their decision were dismissed.

The judges said Parliament must address the issue of boundaries and also stressed the need to create a framework for creation of sub-locations and wards.

The court ruled that IEBC was within its mandate to rely on the report given by the defunct Interim Independent Boundaries Commission (IIBRC) led by Mr Andrew Ligale. 

The judges said IEBC, which retained IIBRC proposed units, acted in accordance with the law concerning the population quota as the population figures it had used were legally recognised. “Delimitation process is not mathematical, IEBC acted accordingly. Some people are born the night after the census,” the judges ruled.

No obligation

IEBC, they further ruled, had to carry out delimitation to ensure no constituencies were lost, as the number of constituencies had been set at 290.

“Wholesome reading of the provision says population quota can only be done progressively and not instantly. There was no obligation on IEBC to achieve instant demographic quota,” the court said.

In the review, Coast and Central got four additional constituencies each, North Eastern (7), Eastern (6), Rift Valley (26) and nine each for Nairobi, Western and Nyanza. Constituencies with the highest population were given priority in splitting.

The petitioners had attacked the formula used by IEBC saying it did not achieve its objective. The judges ruled that the formula used by IEBC was expected to adhere to the procedure used by IIBRC.

This, they added, was necessitated by the use of different deviated margins. The court said it was satisfied IEBC had conducted an extensive programme or public participation.

However, it dismissed IEBC’s argument that the court lacked jurisdiction to deal with the issue on delimitation.

Among the accusations leveled against IEBC was that it created 80 new constituencies and wards without consulting all interested parties. IEBC was also alleged to have disregarded the views of the people, which is against Article 47 of the Constitution and the rules of natural justice.

Some of the petitioners claimed the electoral body had interfered with the size of some constituencies without consulting constituents.

Others had accused the electoral body of failing to take into account the set out criteria and principles for the delimitation of boundaries, which included population quota, geographical features and community interests, historical, economic and cultural ties of the people, and means of communication.

On its part, IEBC had sought to have the petitions challenging the new constituencies to be dismissed. Its advocate, Mr Pheroze Nowrojee told the bench that the constituency boundaries were created within the law.

The electoral body also dismissed allegations it did not consider population quota when coming up with the new constituencies.

The population factor, which the majority of petitioners argued had been ignored, could not be the only factor in determining the new boundaries, the electoral body contended.

IEBC said it considered other issues and if population of a region were the only criteria followed, minority groups would not have a say in the country’s democracy.

Creation of new boundaries, it said was not about majority of numbers but a majority of participation in all decision making.

Nowrojee further submitted that IEBC’s move to create the new electoral areas did not violate the right of any person. Nobody, he added, complained of infringement on his or her Bill or Rights.

“There should be no petition challenging the creation of the boundaries,” he argued.

The commission, he contended, could not be asked to begin the process afresh based on exclusivity of specific areas.

Attorney General, Prof Githu Muigai, also defended IEBC over allegations that it ignored local communities when creating new boundaries.

Through State Counsel Anthony Ombwayo, the AG, who was an amicus curie (friend of the court) in the matter, said there was no requirement for IEBC to concur with the views of all interested parties provided it exercised discretion judiciously.

Most constituencies and wards, he added, had more than one group and it would not have been easy for any party to claim it was expressing views of the entire electoral area.