The delay in the reconstitution of Kenya’s electoral body has crippled the filling of the vacant constituency and civic seats, as well as the review of constituency boundaries.
While some constituencies have gone without representation for over one year because of the Independent Electoral and Boundaries Commission (IEBC), there is a danger that constituency boundaries might not be drawn with only two months remaining before the 12-year deadline.
A total of 11 parliamentary and civic seats remain vacant, but they cannot be filled because the IEBC has not been reconstituted since January. Constituencies including Ugunja, Magarini, and Banissa have remained vacant due to deaths and nullifications despite the law requiring that vacant seats be filled within 90 days.
Banissa constituency, for instance, has remained unrepresented for more than a year after MP Hassan Kulow Maalim died in March 2023. According to the law, the IEBC was supposed to conduct a by-election within ninety days. The election of Magarini MP Harrison Kombe was nullified on May 31, 2024.
President William Ruto’s government has been accused of delaying the reconstitution of IEBC to fill the commission with friendly individuals with an eye on the 2027 elections. However, the government cites the many court cases that have delayed the reconstitution of the commission.
Prof Peter Kagwanja, the Chief Executive of the Africa Policy Institute says that successive governments since the days of Daniel arap Moi in the 1990s often seek to control the electoral body to influence the election outcome.
“If you look at the lightning speed with which the impeachment of Deputy President Rigathi Gachagua was conducted, it means that IEBC could be reconstituted within one week,” said Prof Kagwanja.
After the 2022 elections, the IEBC was left in disarray when the terms of service of the chairman, Wafula Chebukati and two other commissioners; Boya Molu and Abdi Guliye, ended in January 2023. Four other commissioners; Juliana Cherera, Francis Wanderi, Justus Nyang’aya and Irene Masit had earlier resigned having opposed the outcome of the 2022 presidential elections
According to Cyprian Nyamwamu, Executive Director of Future of Kenya Foundation, the delay in the reconstitution of the IEBC is meant two objectives; to block Kenyans who are dissatisfied with the performance of the parliament from recalling their MPs, and a strategy to put the commission in place at the last minute to manipulate the 2027 elections.
However, the High Court on October 22 ordered that the elections for the IEBC Selection Panel to hold fresh elections within 48 hours.
The panel had been crippled by Political Parties Disputes Tribunal following disputes with the Azimia La Umoja about who is the rightful representative between Dr Augustus Kyalo Muli and Koki Muli. Azimio had replaced Dr Muli with Ms Muli based on gender parity.
The Panel is supposed to finish its work of picking the commissioners and the Chairperson in 90 says the president signed president William Ruto signed the IEBC (Amendment) Bill, 2024 in July.
The decision follows Dr Muli’s announcement in September that 15 minor parties would be leading the National Liberal Party’s withdrawal from the Azimio la Umoja coalition.
Meanwhile, the biggest challenge brought about by the absence of IEBC is the likely failure for the second time, to review the constituency boundaries before the 2027 elections.
The boundary review of the 290 constituencies was supposed to be completed in July 2021 before the 2022 elections. This time, the review was supposed to be completed by February 7, 2024. The last review was conducted in 2012.
Article 89 (2) requires IEBC to review the names and boundaries at intervals of not less than eight years and not more than 12 years. This has to be completed 12 months before the general elections.
The review process is particularly sensitive, as it involves revisiting the size and distribution of constituencies, which can affect political representation and resource allocation.
In mid-October, MPs sought an amendment to the constitution to extend the period of the delineation of boundaries, due to the delay in the reconstitution of the IEBC.
Justice and Legal Affairs Committee proposed that Article 89 on the delimitation of electoral units be amended to empower parliament to extend the period of reviewing the names of boundaries of constituencies.
In 2021, IEBC The commission, in its Boundaries Review plan increased the population quota from 133,000 to 164,015. This means that any constituency that does not meet the population quota would cease to exist, should the review take place.
“Halfway into Ruto’s first term, Kenya risks running out of time to carry out a comprehensive boundaries review with adequate public participation. Failure to review the constituency boundaries could lead to debilitating court cases and electoral paralysis,” said Prof Kagwanja.
