, NAIROBI, Kenya, Nov 18 – Attempts by the Interim Independent Boundaries Review Commission to have an order blocking it from publishing the new constituencies lifted have hit a snag after the Chief Justice put off the matter to next Monday.
The Commission had moved to court under certificate of urgency to the Constitutional Court to have the orders set aside so that it completes its mandate before the expiry of its tenure in about seven days time.
The IIBRC chairman Andrew Ligale wants the High Court to hear his team out before the expiry of its mandate which is due to end on November 27.
The Commission\’s lawyer Pheroze Nowrojee appeared before Justice Jean Gacheche and sought to have the matter referred to the Chief Justice to appoint another judge since his clients were not comfortable with her hearing the matter.
It was Justice Gacheche who issued the order barring the gazettement of the new constituencies on Tuesday.
The Chief Justice instead gave a directive for the matter to be mentioned on November 22.
However, Mr Nowrojee expressed disappointment with the turn of events, saying the order by the Chief Justice was unwarranted because they only wanted a different judge to hear them.
On Tuesday the court blocked the gazettement of the new constituencies after a Nairobi businessman John Kimanthi challenged the mandate of the commission and the suitability of three of the commissioners, including the IIBRC chairman.
On Thursday, Mr Ligale however argued that the case was against the letter and spirit of the National Accord and has serious implications on the process of national healing.
"This case has far reaching consequences on national healing, political and constitutional reforms we are working upon following the political crisis of the post 2007 general elections," he said in his affidavit.
He urged the court to consider circumstances under which the IIBRC was formed and reverse its decision and allow it to proceed and finalise its mandate.
"That I particularly remind this court of the National Accord and Reconciliation Agreement of 28th February 2008, by which leaders of Kenya agreed to look beyond partisan considerations with a view to promoting greater interests of the nation as a whole," he added.
There has been uproar from various quarters following a leaked report of the commission with section of MPs from Central Rift and North Eastern provinces threatening to take a Motion to Parliament to disband the commission in a bid to render its work null and void.
The MPs claim that they have been short-changed in the distribution of the additional 80 constituencies.
MPs David Ngugi (Kinangop), Erastus Mureithi (Ol Kalau), Njoroge Baiya (Githunguri) and David Njuguna (Lari) claimed the Ligale-led commission had lost the confidence of Kenyans following the circulation of a leaked report.
In his case Mr Kimanthi claims that the commission lacked the legal mandate to publish the new constituencies, since their task was limited to making recommendations to the National Assembly, which in its wisdom can agree with or make amendments to the proposals.
Mr Kimanthi is also challenging the commission\’s findings claiming that three of its commissioners led by Chairman acted in breach of the law since they were contestants for political office or had been actively engaged in the management of political parties.
Mr Kimanthi has sued Mr Ligale, Ms Rozah Buyu, Ms Irene Masit, IIBRC and the Attorney General.
Justice Minister Mutula Kilonzo has in the meantime differed with his Assistant Minister on the new boundaries.
Mr Kilonzo insists the IIBRC has no constitutional authority to gazette the new constituencies.
He says the statement issued by William Chetumo on Wednesday in Parliament was a shallow personal view driven by regional interests and was not his ministry\’s position.
He says the divisive debate triggered by the IIBRC, “is proof that it is an incompetent commission that – thank God – is on its deathbed.”