NAIROBI, Kenya, Jul 9 – The High Court on Monday offered a sigh of relief to the Independent Electoral and Boundaries Commission (IEBC), after it retained 80 new constituency boundaries following a legal challenge by various groups.
In a landmark ruling, a five-judge constitutional bench instead ordered the merger of some electoral wards and the revision of some ward and constituency boundaries.
Justices Mohammed Warsame, Ruth Sitati, Pauline Nyamweya, Hellen Omondi and David Majanja delivered the ruling that lasted seven hours at the Milimani Commercial Courts just a day to the expiry of the timeline for determination of court cases against the delimitation process.
They ruled that the IEBC had its hands tied in the delimitation process by three facts; that the number of resultant constituencies was already pre-determined, that the delimitation was not going to affect county boundaries and that there were already protected constituencies.
Dujis Constituency boundaries were retained as gazetted by the IEBC but the constituency has been renamed as Garissa Township.
Also renamed is Gwassi constituency form Homabay County which will now bear the name Suba constituency.
Mbita constituency also in Homabay County will now retain its name and will not change to Suba North as the petitioners had pleaded.
The judges dismissed nearly 70 of the 136 petitions that had been lodged against the boundaries saying they lacked sufficient grounds and that some were filed after the date provided for.
Despite the right of appeal, the 90-day period stipulated for legal recourse on boundary delimitation expires on Tuesday.
IEBC is now expected to gazette a fresh list of wards as well as the renamed constituencies by amending the Legal Notice 14 of 2012 that gazetted the commission’s report on boundaries.
The Court ruled that neither the IEBC nor the now defunct Interim Independent Boundaries Review Commission (IIBRC) was mandated to carry out a census, and that the two bodies were obligated to use data provided by the statutory bodies that conducted the census in 2009.
They said that the IEBC was correct in using the reports of the report of the IIBRC that was chaired by former Vihiga MP Andrew Ligale and the report of the Taskforce on Devolution that was chaired by Mutaha Kangu.
“The result and approach taken by the IEBC was reasonable; sparsely populated areas were part of the constituencies protected areas for purposes of the first review. We have evaluated the methodology used by the IEBC and we do not detect any breach of the Constitution or the Fifth Schedule of the IEBC Act,” read the judgment.
The court observed that it recognised the role played by the minorities and the marginalised in the success of the Kenyan nation and that the delimitation will ensure equality among equals for the marginalized.
They said that the IEBC was not obliged to create sectoral ethnic or clan enclaves to protect the rights of marginalised communities.
“Delimitation is not intended to ossify boundaries and communities into history; it is intended to give everyone a voice. Delimitation of electoral units does not stop individuals form going on with their daily activities (fishing, grazing using water pans), boundaries are not fences; the Constitution is protective of the fundamental freedoms and rights of every person’s rights,” the judges insisted.
“What we must discourage is the concept of exclusive wards and constituencies being formed on the basis of sectoral interests that do not meet the objectives of the Constitution delimitation – not the only way through which the problems of the marginalized will be addressed,” the Court ruled.
The Court also ruled that a new ward will be created in Webuye West Constituency, and called Misikhu while Tuuti and Marakaru County Wards will be merged into one in Kanduyi Constituency.
Lawyers Stephen Mwenesi and Harrison Kinyanjui both of whom had presented petitions against the IEBC termed the ruling as marvelous and one that set standards for constitutional interpretations.
“The judges have done well particularly putting emphasis on the need to harmonise all the principles of the Constitution and look at them and interpret them holistically,” he said after the ruling.
“It is a milestone in our judicial process and also in the electoral process. It is not the end of refining our electoral process; the court says that it must be a progressive process,” said Kinyanjui who lost one application seeking to split wards in Dagoretti constituency.