AG moves to block IEBC's advisory request on boundary delimitation

Attorney General Dorcas Oduor has asked the Supreme Court to throw out an advisory case on the delimitation of boundaries filed by the Independent Electoral and Boundaries Commission (IEBC).

In her opposition to the case, seeking the opinion of the highest court in the land on whether the commission can proceed to delimitate boundaries without the six commissioners and a chair, the AG believes it is too late.

Principal State Counsel Odiwour Kaumba is representing Oduor at the apex court. In his reply seen by The Standard, he said that there is no demonstration of urgency for the court to intervene.

He said the timelines set in the constitution and the law have already lapsed. At the same time, the government legal advisor said that the commission’s lack of commissioners makes things worse.

According to her, the advisory is defective as the secretariat cannot decide to sue or undertake critical tasks meant for the commission when a quorum is not met.

“The urgency has dissipated in light of the lapse of the constitutional decreed timelines under Article 89(2) of the Constitution and the absence of the commissioners to undertake the delimitation of boundaries as admitted by the applicant under paragraph 13 of the reference,” said Odiwour.

While urging the Supreme Court not to intervene, the AG also said Parliament is aware of the time-lapse and has crafted a law to remedy it.

According to her, the Constitutional Amendment Bill 2024 is currently before the Senate after being processed by the National Assembly.

“In view of the foregoing, the Attorney General prays for this honourable court to decline to exercise its advisory opinion,” argued Odiwour.

The AG further said there is a case already at the High Court in Kilifi over the delimitation issue.

Her position differs from that of her predecessor, Justin Muturi, who informed the IEBC’s Chief Executive Officer Marjan Hussein Marjan, to seek advice from the highest court in the land following a crisis occasioned by the removal and retirement of the Wafula Chebukati team.

Chebukati, Boya Molu, and Abdi Guliye’s tenures expired in January 2023. Four other commissioners, vice chairperson Juliana Cherera, Francis Wanderi, Justus Nyang’aya, and Irene Masit, were kicked out of office following their rejection of the 2022 presidential election results, which declared President William Ruto the winner.

The IEBC wrote to Muturi on March 20, 2024, asking him to give an opinion on whether the secretariat could undertake the commission roles, including delineating boundaries, in the commissioners’ absence.

The IEBC also asked the then AG to interpret whether the timelines set in the law were cast in stone. If not, they could be wriggled or extended while factoring in the time it had no commissioners.

Muturi who is now Cabinet Secretary for Public Service, Performance and Delivery Management, responded on April 25, 2024, saying that failure to undertake delimitation within the set timelines had legal consequences and challenges.

“Individuals may seek legal redress, arguing that failure to delimit boundaries had compromised their constitutional right to fair representation and participation in the electoral process,” he argued, asserting that that there was no way the IEBC could stretch the time beyond the set limits.He asked Marjan to seek an advisory from apex court pointing out the secretariat had no powers to do the commission’s work. Muturi said that the commission could not extend the time.

Marjan said the delay was beyond the commission’s control. According to him, the advisory would resolve the deadlock.