Election crisis as MP demand boundaries review before 2027

Lawmakers have thrown a spanner in the works and potentially disrupted 2027 poll preparations as they called for urgent review and updating of the country’s electoral boundaries.

The National Assembly’s Constitutional Implementation Oversight Committee has warned of a major legal and political disaster if the “critical” boundary assessment and correction are not completed before the next general election.

In a report after scrutiny of the electoral body’s performance, the committee said failure to carry out the delineation in time would undermine the integrity of the 2027 General Election.

The boundaries review determines voting areas and blocs, many of which have shifted since the last review. New numbers could split votes, eliminate blocs and affect campaigning and outcomes.

“The boundaries delimitation period has lapsed [in March 2024] and it needs to be completed before the general elections in 2027,” the committee reported. The panel is chaired by Suba North MP Caroli Omondi.

The lawmakers demanded the commission report back to Parliament, detailing concrete steps it has taken to “initiate the boundary delimitation process”.

The demand pits MPs against the Independent Electoral and Boundaries Commission (IEBC), as the electoral agency has said boundary review is not feasible within the 2027 timeline.

 “The commission is considering its options, noting the timelines, competing commission activities and the necessity of the boundary delimitation exercise,” the commission said in submissions to MPs. The IEBC is chaired by Erastus Ethekon.

“The situation is a constitutional crisis that requires Parliament itself to act,” the polls agency chairman said.

MPs, however, reject this absolutist stance. Committee chairman Caroli Omondi, the Suba North MP, said a legal window remains open, allowing the polls to progress and allowing delayed delimitation.

“Any review must be completed at least 12 months before a general election, and the new boundaries shall not take effect if a general election is held within 12 months after the completion of the review. The 12 months have not, therefore, been exceeded,” he told the Star in an interview.

He said the committee has directed the commission to seek an opinion of the Supreme Court on the matter.

Article 89 of the constitution requires the IEBC to review boundaries at intervals of not less than eight years and not more than 12 years.

The last review was completed in 2012, the eight-year window lapsed in 2020, and a hard deadline of March 6, 2024, passed without action.

The problem had worsened because the IEBC lacked the required quorum of commissioners to make decisions, crippling its capability to decide and act.

The commission secretariat had turned to the Supreme Court for an opinion but was turned down. 

Critically, the Supreme Court concluded that delays under Article 89 that requires IEBC to carry out boundary delimitation can only be addressed through parliamentary initiatives.

“The lapse created a constitutional difficulty, but the court clarified that it lacked power to retrospectively extend or amend those timelines,” a brief on the ruling read.

Despite this ruling, the judges held that the timelines under Article 89(2) and (3) of the constitution were binding and could not be disregarded.

The court held that only Parliament could establish mechanisms for extending timelines in exceptional circumstances.

A resolution passed by a majority of National Assembly members and a majority of the county delegations in the Senate is required. This means the vote has to be supported by at least 233 members of the National Assembly in plenary and 45 in the Senate.

A draft bill under the National Dialogue Committee framework contains a clause requiring Parliament to vote for an extension of electoral boundaries delimitation. It is yet to be considered.

Legal and logistical hurdles have compounded the constitutional crisis.

MPs said the validity of population data from the 2009 and 2019 censuses remains contested in court.

“This is creating uncertainty for the boundary delimitation exercise, which relies on accurate population data,” the committee said.

The data IEBC is to use for a fair review has been brought into disrepute, amid imminent fear that delays “risk igniting community, sectarian, class and religious conflicts”.

MPs have acknowledged the high stakes in redrawing the political maps, even as the future of 27 constituencies, whose protection lapsed in March 2024, hangs in the balance.

They are Voi, Wundanyi, Mwatate, Galole, Bura, Isiolo South, Samburu East, Laisamis, North Horr, Saku, Kilome, Mukurweini, Mbeere North, Mathioya, Ndaragwa, Budalang’i, Vihiga, Othaya, Mathioya, Kangema, Marakwet East, Keiyo North, Tetu, Mogotio, Lamu East, Lamu West, and Mvita.

In 2012, these constituencies did not meet the population threshold of 164,000, making them invalid. 

A severe financial crunch at the polls management body threatens to derail both the delimitation and the 2027 elections.

The IEBC reports a budget deficit of Sh7.63 billion for the general election, and is saddled with Sh5.75 billion pending bills from previous polls.

The commission argues that preparations for the 2027 polls make undertaking the review impractical.

IEBC chief executive officer Hussein Marjan said it could take at least a full year to conduct a satisfactory and credible boundary review.

He cited the high level of public participation required across the 290 constituencies to arrive at an acceptable outcome.

Despite the impasse, IEBC says it has undertaken extensive preparatory work for the review.It already has prepared a delimitation concept paper, the boundaries review operations plan and a situational analysis.

The IEBC also has carried out a pilot study, collected and digitalised administrative units' geo-data, acquired equipment (funded by UN Development Programme), and trained staff.

Besides reviewing the legal framework, IEBC says it has developed delimitation applications and map and a standardisation manual.

A plan for security arrangements, civic education and public outreach strategies are also under consideration.

The IEBC already has disclosed to MPs that a project and technical boundaries delimitation team to manage the review is already in place.

IEBC staff have been trained on the new technology and requisite applications have been developed.

Boundaries Hub a digital platform that members of the public will use to submit memoranda ¾ is also ready.

A map standardisation manual also has been used by cartographers when producing the commission's maps.

A Boundaries Security Arrangement Plan (BSAP) is also in place to avert anticipated community flare-ups when voting numbers are adjusted to the benefit or detriment of some communities and political figures.

Some constitutional lawyers say that nothing stops the IEBC from conducting a review before 2027.

Lawyer Bobby Mkangi argued that only war or a natural disaster can create a crisis to delay the process.

Kamotho Waiganjo said the danger is that the 2027 elections will not meet the constitutional threshold. He warned against courts taking a technical approach to the question and said tan extension by Parliament “only sidesteps the issue".

INSTANT ANALYSIS

The MPs’ report sounds a final warning siren. It is less than two years to the 2027 elections, yet the IEBC is underfunded, behind schedule on a critical constitutional task, and struggling and at pains to regulate a new digital battlefield. The countdown to avert a full-blown crisis has well and truly begun.