Sunday, July 24, 2011

Why next year’s election may not be held in August

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Justice Minister Mutula Kilonzo (left) and his Lands counterpart James Orengo, both lawyers, have raised reservations about the legal advice given to the State by two British lawyers and asked that Attorney-General Amos Wako intervenes in the matter. Photo/FILE
Lands minister James Orengo (RIGHT) and his Justice counterpart Mutula Kilonzo said the delay in the publication of the Independent Electoral and Boundaries Commission Act could affect the creation of the new constituencies and interfere with the elections date. Photo/FILE 
By BERNARD NAMUNANE, bnamunane@ke.nationmedia.com AND PETER LEFTIE, pmutibo@ke.nationmedia.com
Posted  Saturday, July 23  2011 at  20:45

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The requirement to create 80 new constituencies could interfere with next year’s election calendar and cause a constitutional crisis.
Lands minister James Orengo and his Justice counterpart Mutula Kilonzo said the delay in the publication of the Independent Electoral and Boundaries Commission Act could affect the creation of the new constituencies and interfere with the elections date.
Matters are further complicated by the failure of law-drafting teams to fast-track the elections Bills that are to lay down the finer details of the rules by which candidates and their supporters must abide.
Speaking separately, the ministers warned that the yet to be established IEBC will be forced to rush through the creation of extra seats as provided for in the Constitution.
“The IEBC will face a very difficult situation. It has one month to create the constituencies, and it has not even been set up,” said the Lands minister. Mr Orengo said that once established, the IEBC will not have time to go round the country collecting views from the public over the new seats.
“They may not be able to go round the country as the Ligale (defunct Interim Independent Boundaries Review Commission) team did. They will probably just go through previous reports and draw the new boundaries of constituencies,” he said.
Mr Kilonzo warned that unless the government moves fast to set up the IEBC, the date of the General Election may have to be pushed forward.
“What time shall we have to set up the IEBC, create and approve the 80 new constituencies, create the register of voters, establish the voting system and create the nomination rules? We must move very fast or else we will fail to hold the elections in time,” he said.
Cannot run away
Mr Orengo warned that the country cannot hold elections without the new constituencies.“We cannot run away from what the Constitution says.
If we do not have 290 constituencies, it will be a violation of the Constitution, and anybody can go to court and argue that Parliament was not properly constituted,” he said.
A meeting called by the Constitutional Implementation Oversight Committee on Wednesday to discuss the slow pace of passing crucial reform Bills also expressed concern about the election calendar.
“We discussed the matter and agreed that any delays could severely affect the election calendar. We resolved to push the process much faster,” said an MP who sat through the meeting but requested anonymity because she is not the committee’s spokesperson.
The IEBC Act was only published on Monday, almost two weeks after President Kibaki assented to it. As a result selection of nominees to the seven-member panel to conduct interviews for the new IEBC commissioners started at least two weeks late and could still face legal challenges given that the Act states clearly that the panel must be established 14 days upon the publication of the law.
Whereas the new Constitution states that the law on elections must be in place by August 27, the Election Bill 2011 is still in the formative stages after which it will be forwarded to the Cabinet for approval and later to Parliament for debate and enactment.
The Election Bill establishes the rules governing the conduct of the presidential, parliamentary and senate elections as well as the rules governing the management of the register of voters and the recalling of MPs. If the schedule set out in the IEBC Act and the Constitution is strictly followed, it will take several weeks for Parliament to establish the new electoral body and up to four months to approve the list of the 80 new boundaries.
The MPs must first vet and approve the list of panel members picked by the two principals and the other nominating bodies to interview candidates seeking to be the new IEBC commissioners within 14 days from the day of the publication of the law.
According to the IEBC Act, the panel will have seven days to invite interested Kenyans to apply for jobs as commissioners. Once the panel has conducted the interviews and short-listed candidates, it will forward the names to the two principals who will select the new commissioners from the shortlisted candidates.
Parliament shall then have 14 days to go through the list of nominees and another seven days to debate and approve or reject the names. Once the commission is established, it will have four months to draw up the oundaries of the 80 new constituencies.
The Constitution decrees that the new constituencies must be set up 12 months before the next election.

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