The push to have a referendum by June next year could occasion a change in the 2022 General Election date.
Political leaders and pundits now say that given the circumstances, it was unlikely that the country will have a referendum by June, implement the law, and still to go for a General Election in August 2022.
The Standard has learnt that there is talk among some proponents of BBI to push for the postponement of the elections after the promulgation of the law to allow a seamless transition, with the creation of the 70 constituencies.
“After the referendum, we will review and see if the strict timelines will allow the Independent Electoral and Boundaries Commission (IEBC) to prepare and conduct credible and transparent elections, inclusive of the proposed new 70 constituencies, within six months. If not we will push for deferment of the polls,” said a senior official allied to the handshake team who declined to be named.
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Effects on the economy
On November 2, President Uhuru Kenyatta and ODM leader Raila Odinga unveiled a road map for the plebiscite that will see the country vote on the proposed constitutional changes in the Building Bridges Initiative (BBI) some time mid next year.
Last week, former MP Kabando wa Kabando argued that the road map for the referendum will make it difficult to have the election as required by law on August 2022.
“A devious conspiracy to postpone 2022 elections is afoot. Ostensibly because BBI timetable is impractical. We cannot hold a referendum mid-2021, create new constituencies by August 2021, organise elections for August 2022,” tweeted Kabando.
He questioned where the budget will be drawn from and its legality amidst Covid-19 effects on the economy.
The crux of the matter is the reconstitution of IEBC and the creation of 70 new parliamentary seats. After the referendum, the IEBC will have to be reconstituted by either overhauling of the entire team or having additional commissioners picked to fill the four vacant positions.
This process alone could take up to six months.
The fully constituted electoral body will then be expected to begin boundary delimitation that will align constituencies, including boundaries for the extra slots.
According to the law, IEBC is supposed to do boundaries delimitation every 10 years and must complete the process a year before the general election. The last boundaries delimitation process in 2010 was spearheaded by Interim Independent Constitutional Dispute Resolution Court chaired by Andrew Ligale.
According to proposals in the Constitution (Amendment) Bill 2020, IEBC will be required to draw the boundaries of 360 constituencies across the country.
Constitutional lawyer Bobby Mkangi yesterday outlined the key hurdles that the next General Election faces if the process adheres to the strict timelines.
He warned that with an active court injunction against Parliament, the passage of the referendum law may delay and throw the timelines into disarray.
Mkangi said even with the BBI law in place next year, the country will have to contend with the recruitment of IEBC commissioners and the boundaries delimitation process, which might face legal landmines.
“Add to this the transfer and fresh registration of voters, the party primaries and settling of disputes and the actual tendering and conducting of elections and you realise there is not enough time,” said Mkangi.
He added: “The challenges are numerous, including social and economic if the timelines are pegged on the 2022 elections. If IEBC is to review, create and conduct elections which are free and fair and not contested, we are on a slippery slope.”
Mkangi said the country could be setting itself up for a highly contested ill-prepared election that may kill the legitimacy of the vote yet this is what BBI is intended to cure.
Constitutional Implementation Oversight Committee chairman Jeremiah Kioni, however, introduced a new twist to the matter, saying the new constituencies may have to be deferred to 2027.
He gave two scenarios that going by the court ruling, the IEBC commissioners will not have to wait for the additional four to be recruited before they commence the boundaries delimitation after the referendum in June next year.
“Since our elections are not staggered, the 70 new constituencies can be exempted in the 2022 elections. We will defer them to 2027,” said Kioni.
He seemed to borrow from Article 89 (4) of the delimitation of electoral units, which states that, “If a General Election is to be held within 12 months after the completion of a review by the commission, the new boundaries shall not take effect for purposes of that election”.
Can be excluded
Kioni argued that the IEBC as presently constituted was legal and therefore the three commissioners can proceed with the boundary delimitation without waiting for the nomination of the four after the BBI law is in place.
“They can be excluded from the 24 months requirement by law to be effected before the next general election to 2027 or moving the date of the referendum,” he said.
He nevertheless ruled out an extension of the term of the president, insisting that it can only be effected in a referendum, while that of Parliament should be done in exceptional circumstances such as war.
“Extending our term would be overstretching the intent of the drafter of the Constitution of Kenya, 2010,” said Kioni, even as he admitted that the referendum Bill, yet to be introduced in Parliament, faces an uphill task in terms of meeting the set timelines.
“Until the court lifts the injunction on the consideration of Bills, we will still have to wait and only commence the consideration afterwards,” he added.
IEBC chairman Wafula Chebukati recently absolved his team from any blame, saying they came into office months to the polls.
He also argued that any move to extend the election date must be included in the referendum Bill.
Ugunja MP and ODM Political Affairs Secretary Opiyo Wandayi yesterday said IEBC must employ innovative ways to complete the delimitation on time.
“IEBC must take a cue and complete the signature verification within a week to allow the county assemblies to play their role,” said Wandayi.
Deleted the requirement
BBI secretariat co-chairperson Junet Mohammed (Suna East) said based on the changes made in the Bill that deleted the requirement of political parties to nominate the IEBC commissioners, the search will commence after June 2021, guided by the Act.
“We already have the IEBC Act, which sets out how the selection panel will be recruited. The commissioners are supposed to be seven and therefore the others must be recruited. IEBC, therefore, has six months to undertake boundary delimitation,” explained the National Assembly Minority Whip.
He introduced an interesting twist, saying in keeping with the tight timelines, if the referendum is held in June 2021, the commission will have up to December to create the new constituencies.
“June was on the upper side. We will work backwards to hold the referendum in March or April next year,” he said.
Senate Minority Whip Mutula Kilonzo Jnr ruled out any move to postpone the 2022 elections.
“The exercise should be simple since the areas (constituencies) are identified. The IEBC must work extra hard to delimit and prepare for polls. With goodwill and resources, it will be easy,” said the Makueni Senator.