Crisis looms over new constituencies

By Isaac Ongiri

A fresh storm has erupted over the mandate of the new Independent Electoral and Boundaries Commission (IEBC), threatening the creation of 80 new constituencies expected before the General Election.

Two groups of MPs have emerged — one pushing to have the delimitation restarted.

Another is pushing for the adoption of the Ligale Report, with minor reviews.

The battle lines are already drawn between President Kibaki’s PNU, and Prime Minister Raila Odinga’s ODM. The Orange party supported the Ligale Report, when it was tabled in Parliament. PNU rejected it.

The new row is likely to pose a major challenge to the new commission whose creation is under way, with threats of court action being considered.

It is expected that vested interests from the opposing parties are likely to influence the recruitment of the new commission, expected to take shape in weeks, with the short-listing under way.

It is feared that if the controversies play out, the creation of the constituencies before the electionscould be undermined.

The IEBC commissioners will have four months after being sworn-in to gazette boundaries of new constituencies.

Justice Minister, Mutula Kilonzo, has kicked off a storm, insisting IEBC will be under his office, and it is mandated to work independently.

"The IEBC is free to restart the delimitation. You remember this is an independent commission. Nobody directs it on what to do," Mutula told The Standard On Sunday.

The minister, however, says that the commission is only advised to refer to the parliamentary report in which the defunct Interim Independent Boundaries Review Commission (IIBRC) report is annexed, for primary reference.

Kilonzo’s understanding of the IEBC Act and the Constitution is in sharp contrast with that of Mandera Central MP, Abdikadir Mohamed.

Abdikadir, who is also the chairman of the parliamentary Committee on the Implementation of Constitution (CIOC), is clear that the mandate of the IEBC does not include reopening of delimitation.

"The IIBRC was an independent commission that was constitutionally mandated to undertake the first review, which it did. The IEBC does not have that mandate under the law. The Andrew Ligale Commission’s work cannot be reviewed. Only minor mistakes can be corrected," Abdikadir insisted.

The Mandera Central MP warns the matter is explosive and threatens the plan to expand parliamentary representation.

"These issues have been raised. We have had kamukunjis on the matter, and Parliament finally adopted the Ligale Report, which is also annexed to the IEBC Act. Some people are refusing to appreciate this fact," Abdikadir said.

Nominated MP Mohamed Affey described the IEBC Act as defective, and in conflict with the Constitution, adding that it can be challenged in court.

"We are expecting nothing other than a fresh start. We expect the commission to visit the 210 constituencies and collect fresh views. Under the law, the commission is independent and has the right to do this," Affey argued.

He described the adoption of the Ligale Report and the fixed annexure of the report in the Act, as having been dictated, and that the Constitution does not bind the new commission to an inconsistent legislation.

Githunguri MP, Njoroge Baiya, a member of the troubled parliamentary Committee on Legal Affairs and Administration of Justice that handled the Ligale Report and partly the IEBC Act, warned that it would be difficult to create new constituencies if the new commission cannot begin afresh.

"This commission being created will have the mandate to independently interrogate the Ligale Report. We know this will create the challenge of beating the timeline, but the right thing must be done," Baiya said.

Baiya argued that the inconsistencies introduced in the IEBC Act by those who benefitted from the Ligale Report, must be corrected by the requirements of the Constitution.

He says the Constitution gives the IEBC independent say over new boundaries.

Kinangop MP, David Ngugi, described Ligale’s work as shoddy, and asked Kenyans to wait longer for new constituencies.

"The so-called report by Ligale was unfair. It did not follow the law. It split some of the constituencies that did not meet the legal threshold," Ngugi said.

He gave examples of smaller constituencies like Kipipiri and Vihiga, which were split instead.

Kasipul-Kabondo MP, Oyugi Magwanga, said that the new commission should adopt the Ligale Report.

"If the report cannot be adopted as approved by Parliament, then we would ensure these constituencies are not created," Magwanga warned.

Rangwe MP, Martin Ogindo, said the work of the new commission is limited to correcting overlapping issues, but not creating new constituencies.

"There is hope among those who want the process to restart that IEBC will create new constituencies. They are supposed to align the boundaries where there are issues and create new wards," Ogindo said.

The IIBRC failed to complete its work after internal differences emerged, with then commissioners Mwenda wa Makathimo, Joseph Kaguthi, and John Nkinyangi walking out of the commission’s final meeting.

Makathimo and Nkinyangi are now among 434 applicants seeking to join the new boundaries team. Their rivals who were on Ligale’s side then, including the former Vihiga MP, and former commissioners Murshid Abdala, Abdulahi Sharawe, Jedida Ntoyai and Irene Cherop Masit have also applied.