• The BBI Bill has proposed 70 additional constituencies and distributed them among 28 counties in what its proponents say would ensure equity of the vote.
• The electoral agency boss said while the BBI team was justified to add more constituencies, their boundaries and placement in counties is a preserve of the IEBC alone.
Image: EZEKIEL AMING'A
The electoral agency has dismissed as unconstitutional the delineation of 70 proposed new constituencies in the BBI Bill.
IEBC chairman Wafula Chebukati on Wednesday said the promoters of the Bill usurped the powers of the commission to set constituency boundaries, contrary to provisions of the Constitution.
The IEBC boss made submissions before the joint parliamentary committee on Justice and Legal Affairs on the Constitution of Kenya (Amendment) Bill, 2020, otherwise known as the BBI bill.
“In the event the Bill passes as is, it will contradict the existing Articles 88(4) (c) and 89 of the Constitution, thereby presenting possible legal challenges to the delimitation process,” Chebukati said.
The Constitutional provisions give the IEBC the mandate of conducting delimitation upon creation of additional constituencies.
The BBI Bill has created 70 constituencies and distributed them among 28 counties in what proponents say would ensure equity of the vote.
Chebukati said while they were justified to create new constituencies, their placement in the counties is the preserve of the Independent Electoral and Boundaries Commission alone.
He said the BBI promoters never consulted the commission nor conducted public participation prior to the creation of the proposed constituencies.
He said this situation could trigger court cases and render the referendum illegal.
Besides, Chebukati warned the short period – six months – proposed in the Bill for the delimitation of the additional constituencies could throw the 2022 polls into disarray and plunge the country into a constitutional quagmire.
The chairman said boundary delimitation is an emotive exercise that could result in numerous disputes and litigation and cause chaos if hurriedly done.
He reiterated the commission would require at least two years to carry out public participation, file reports and resolve existing boundary disputes.
“Taking into consideration the time needed to conduct public hearings, preparation of reports, dispute resolution and fresh voter registration for the affected constituencies, coupled with preparation for the 2022 General Elections, the Commission is of the view that the proposed six months delimitation period is not sufficient,” Chebukati said.
The Constitution stipulates that delimitation of electoral boundaries shall be done at least 12 months to the General Election.
“There are things like public participation and dispute resolution that consume a lot of time. If this Bill passes, we will have to do many things; build a constituency, register voters and many others within that short time,” Chebukati said.
The joint committees chaired by Senator Okong’o Mogeni (Nyamira) and MP Muturi Kigano (Kangema) hosted the public hearings at the Senate Chambers in Parliament Buildings.
The BBI Bill designates that the larger Rift Valley will get 23 new constituencies, Nairobi 12, Central Kenya 11 and Coast 10.
Kiambu county will get six new constituencies, Nakuru five, Kilifi four, while Uasin Gishu, Narok, Kajiado, Mombasa, Kwale and Bungoma counties will get three each.
Meru, Bomet, Kakamega, Kisumu counties are slated to get two new electoral areas.
Mandera, Embu, Makueni, Kirinyaga, Murang’a, Turkana, West Pokot, Nandi, Laikipia, Siaya and Nyamira have been allocated one each.
But Chebukati explained that just as the 2008 Interim Independent Boundaries Review Commission was given a mandate to delimit 80 constituencies to be added to 210 constituencies, the promoters of BBI should have done the same.
He said the BBI proponents should have created the 70 constituencies and let the IEBC use the formula in Article 89 and allocate them as appropriate.
The electoral agency boss said the commission is in the dark on how the drafters of the Bill came up with the constituencies and the rationale behind their distribution.
He said the agency was never consulted.
“I don’t know how the BBI team came up with the allocation of the 70 constituencies. I don’t know what factors they took into consideration. The commission was not consulted on that so I don’t know the source of that allocation,” he said.
The committee was dismayed.
“Your presentation has taken me aback,” said Rarieda MP Otiende Amollo, who is the vice chairman of the National Assembly’s Justice and Legal Affairs Committee.
Tharaka MP George Murungara asked, “If this [the presentation] is going to render the process illegal, what is the way forward?"
Chebukati responded by saying he was merely pointing out the law as it is, adding that it would be up to Kenyans to decide at the ballot.
The chairman, however, reiterated the commission’s readiness and preparedness to conduct the referendum tentatively scheduled for June this year.
“We are ready when it comes and if it comes the commission has already projected a referendum plan and internally we have already thought about how it should be conducted,” Chebukati said.
(Edited by V. Graham)