Photo/FILE The Commission for the Implementation of the Constitution chairman Charles Nyachae speaks during a media breakfast at the Hilton Hotel, Nairobi on June 14, 2011.
By PETER LEFTIE pmutibo@ke.nationmedia.com
Posted Monday, August 1 2011 at 22:29
Posted Monday, August 1 2011 at 22:29
The 80 new constituencies proposed by the former Boundaries Commission may be scrapped if Parliament acts on suggested amendments to a new law.
The Commission for the Implementation of the Constitution (CIC) has written to Parliament and the two principals warning that the report of the former Boundaries Review Commission was not binding to the new Independent Electoral and Boundaries Commission.
The CIC warns that the new IEBC Act violated sections of the constitution and could pose legal challenges in future unless it is amended.
In his letter, CIC chairman Charles Nyachae warns that the clause in the new Act directing the new electoral commission to “consider” the Ligale report when creating new constituencies violates the Constitution.
The CIC warns that the clause infringes on the independence of the new electoral body by purporting to direct it on the manner in which it should discharge its mandate.
“The purport of Article 249 (2) is that when carrying out its mandate, the Commission is only subject to the constitution,” Mr Nyachae points out.
“It is admitted that the manner in which the Commission carries out its functions can also be determined by legislation as provided in Article 88 (5) and that such legislation would include the current Act.
“Such legislation however cannot take away or limit a right given to the Commission by the Constitution,” he says.
Controversial list
Mr Nyachae warned that unless amended, the clause will hinder the Commission from curing any defects of a constitutional nature that may be contained in the Ligale report or that of a parliamentary committee that scrutinised the controversial list and adopted it.
The Commission also warns that a clause in the new law that mandates the new IEBC to review administrative units is also unconstitutional.
Mr Nyachae says the new constitution only gives IEBC the mandate to review electoral boundaries and makes no mention of administrative units.
The CIC faults the new law for purporting to “direct the Commission on what should be included in the boundaries report by providing that, in its final report, the Commission will “take into account” the resolutions of the National Assembly before preparing its final report for gazettement.”
“This Section is an affront to the Commission’s independence that is protected under Article 249(2)b,” Mr Nyachae points out.
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