Supreme Court to rule on Monday whether more constituencies to be formed before 2027

The country is staring at a constitutional crisis over the conduct of delimitation of constituencies and ward boundaries that have already lapsed.

Chief Justice Martha Koome and the Supreme Court bench are scheduled to issue an advisory on Monday sought by the Independent Electoral and Boundaries Commission (IEBC).

Constitutional expert Mohamed Abdikadir says IEBC has no option other than to conduct the boundaries review that could see 27 constituencies scrapped before the 2027 general election.

The electoral body that has been running without commissioners says it has had its hands tied, drawing the country into a constitutional crisis.

The IEBC is before the apex court and is lamenting that it was supposed to have concluded the boundaries review on 6th March last year as stipulated by the constitution.

The electoral body now wants the Martha Koome-led bench to advise whether IEBC can undertake the process of delimitation of electoral boundaries and other electoral processes in the absence of commissioners.

In its application to the Supreme Court, IEBC wants an advisory on whether the commission can conduct a review of the names and boundaries of constituencies and wards when timelines envisaged under Article 89(2) and 89(3) as read with Section 26 of the County Governments Act have lapsed.

In addition, the IEBC wants to know whether the constitutional timelines envisaged under the provisions of Articles 89(2) and 89(3) as read with Section 26 of the County Governments Act can be extended, and if so, by whom and under what circumstances.

Constitutional lawyer Abdikadir says the process of boundaries review is a constitutional requirement that the commission cannot run away from.

"You want to tell us if we don’t have commissioners until the elections we cannot hold elections... even when we don’t have commissioners, we have the commission that should have done this," he said.

The advisory sought at the Supreme Court, experts say, should unlock the timelines impasse and not defer the delimitation process.

"We are time bad... we are outside the timelines... what the Supreme Court should tell us is if the time can be extended," he added.

Cabinet Secretary Aden Duale affirmed that the country is in a constitutional dilemma and wants Parliament to also seek an advisory on what role it can play to avert the crisis.

"Even if the time has lapsed, we have the Supreme Court, and we want that advisory, including what Parliament can do to ensure we have new constituencies," Duale stated.

In the 2012 boundaries review, the population quota was placed at 72,000 people per constituency, and the review to be conducted has set a population quota of 164,000. Twenty-seven constituencies have not met the target and may be scrapped ahead of the 2027 polls.

"We wanted as framers each constituency to be as close as possible... how do you get the population quota... you take 290 constituencies and divide from the population of the country," Abdikadir said.

Constituencies that are in densely populated urban setups are allowed to go up to 140% of the population target, while rural and far-flung constituencies are allowed to go below by 40%.

"For Nairobi, if the baseline is 100,000, then it is allowed to go up to 140,000 people... for North Horr, if the baseline is 100,000, then they are allowed to be at 60,000," the lawyer added.

Highly populated constituencies will be split, while those that fail to meet the population quota are scrapped or merged.