Why BBI's proposed 70 constituencies won't apply in 2022

The 70 new constituencies proposed by the BBI Bill may not apply in next year's polls if a referendum is not held before August 8.

There are concerns that the referendum timeliness could be drastically affected by the cases pending in court, further throwing the application of the constituencies into disarray.

A delayed referendum would mean the Independent Electoral and Boundaries Commission would be unable to meet strict constitutional requirements on constituencies review.

Article 89(4) of the Constitution states that "any review shall be completed at least twelve months before a general election of Members of Parliament."

This means that for the proposed constituencies to apply in the 2022 polls, then they must be created before August 8, exactly 12 months before the general election.

However, given that Parliament is yet to vote and approve the BBI Bill and coupled with the litany of the pending court cases, chances of a referendum before August would be remote.

The Bill before Parliament has however put a clause exempting the new Constituencies from the Article 89 requirement.

"The requirement in Article 89(4) does not apply to the review of boundaries for the additional constituencies preceding the first general election from the commencement date of this Act," the BBI sponsored Bill states.

On Monday, National Assembly Minority leader John Mbadi warned of 'chaos' in next year if the application of the proposed constituencies is delayed until 2027.

The Suba South MP told the Star that failing to have the constituencies take effect in the next general election would result into them being sidelined in terms of development.

“That would pose a dangerous scenario because some of the created electoral areas may suffer development consequences, including biased development if they don't apply in 2022,” Mbadi said.

“Constituencies are created so that they apply in the next general election, otherwise some areas may end up being underdeveloped.”

Under the Constitution, the IEBC must delimit the country's electoral boundaries between eight and 12 years.

With the last having been done in 2010, another one is due, but the flurry of activities expected to be concluded by the IEBC before 2022 has complicated the commission's time calendar.

The Bill, in its transitional provisions, says Article 89 (4) of the Constitution which requires that new constituencies be created 12 months earlier, will not apply to the proposed 70 electoral units.

But legal experts have warned that the exemption would be a recipe for chaos with possible protracted legal battles likely to delay the implementation.

“We must also consider that the results of the referendum and the boundary review can be both challenged in court,” constitutional lawyer Bobby Mkangi said.

Mkangi said this would result in limited time for IEBC to prepare in terms of registration or transfer of voters, acquisition of additional voting materials - for the elections.

The Constitution of Kenya (Amendment) Bill, 2020 seeks to create constituencies in 28 select counties, with Nairobi set to get the highest at 12.

Kiambu will get six new constituencies, while Mombasa, Kwale, Machakos, Uasin Gishu, Narok, Kajiado and Bungoma will have three each.

Meru, Trans Nzoia, Bomet, Kakamega and Kisumu will get two each, whereas Nyamira, Siaya, Kericho, Laikipia, Nandi, West Pokot, Turkana, Muranga, Kirinyaga, Makueni, Embu and Mandera will get one each.

This even as it emerged that the National Assembly would have a special sitting on Wednesday and Thursday to consider the BBI Bill.

 Mbadi told the Star on Monday that the special sitting will approve the BBI Bill but warned the legal hurdles could slow down the referendum momentum.

“The biggest challenge for a referendum before August is in the courts. The courts have really interfered with the BBI referendum timelines,” he said.

Last month, the High Court issued temporary orders suspending the coming into force of Constitution of Kenya (Amendment) Bill, 2020 pending the hearing of a case challenging it.

The hearing of the case is ongoing.

This means if Parliament passes the Bill, the President will not be able to sign it into law or forward it to the IEBC for a referendum until the case before the five-judge bench is heard and determined.

The order was issued following an application filed by Thirdway Alliance lawyer Elias Mutuma who urged the court to suspend the Bill from being assented into law.