Supreme Court Declines to Extend Lapsed Boundaries Review Timelines: Legal Experts Analyze Implications

In a significant development, the Supreme Court of Kenya has issued an advisory opinion in response to a petition filed by the Independent Electoral and Boundaries Commission (IEBC), addressing the contentious issue of lapsed timelines for the delimitation of electoral boundaries. The IEBC sought the court's guidance due to a constitutional crisis stemming from its inability to conduct a mandated review of electoral boundaries by March 2024, primarily due to a lack of quorum caused by unfilled vacancies for a chairperson and six commissioners. Legal experts have now weighed in on the ruling, highlighting its implications for Kenya’s electoral processes, constitutional adherence, and political stability.

The IEBC, tasked with reviewing and delimiting electoral boundaries every eight to twelve years as per the Kenyan Constitution, last conducted such a review in March 2012. The next review was due by March 2024, a deadline that lapsed due to operational challenges. The commission has been hamstrung by the absence of commissioners, a situation exacerbated by the failure to recruit replacements following a High Court order on January 24, 2024, mandating immediate appointments. This lack of quorum has halted critical functions, including boundary delimitation and the conduct of by-elections in several counties, raising concerns about fair representation and electoral integrity.

The IEBC, led by Chief Executive Marjan Hussein, approached the Supreme Court under Article 163(6) of the Constitution, which allows the court to provide advisory opinions at the request of national or county governments or state organs on matters concerning county governance. The commission posed three key questions: whether it could undertake boundary delimitation without the requisite quorum of commissioners, whether other electoral processes could proceed under these constraints, and whether the lapsed constitutional timeline for boundary reviews could be extended or excluded from periods when the commission lacked operational capacity.

The Attorney General, Justin Muturi, had previously issued an opinion on April 22, 2024, stating that the IEBC’s failure to meet the delimitation timeline constituted a breach of the Constitution. Muturi emphasized that constitutional provisions must be upheld under all circumstances, warning that the lapse could lead to legal challenges and litigation from citizens claiming their right to fair representation had been compromised. This prompted the IEBC’s urgent appeal to the Supreme Court for clarity and a potential resolution to the deadlock.

The Supreme Court, in its advisory opinion, declined to extend the lapsed timelines for the boundary review, affirming the strict adherence to constitutional deadlines. The court ruled that the IEBC could not undertake delimitation or other electoral processes without the requisite quorum of commissioners, as this would contravene the constitutional framework governing the commission’s operations. The justices emphasized that the Constitution’s timelines are binding and cannot be altered or excluded, even in the absence of commissioners, as such an extension would undermine the rule of law and the principles of constitutional governance.

The court further noted that the failure to appoint commissioners, despite the High Court’s directive, was a systemic issue that required resolution through legislative or executive action, not judicial intervention. The justices underscored that allowing the IEBC to operate without a quorum would set a dangerous precedent, potentially eroding public trust in the electoral process. However, the court acknowledged the unprecedented nature of the crisis and urged the government to expedite the recruitment of commissioners to restore the IEBC’s functionality.

Legal scholars and practitioners have offered varied perspectives on the ruling, highlighting its legal, political, and social ramifications. Constitutional law expert Dr. Jane Wambui praised the court’s commitment to upholding constitutional timelines, arguing that flexibility in such matters could weaken the legal framework. “The Supreme Court’s decision reinforces the sanctity of the Constitution as the supreme law. Allowing extensions without clear constitutional backing risks creating loopholes that could be exploited in the future,” she said. Wambui noted that the ruling places pressure on the government to address the IEBC’s vacancies promptly, as continued delays could further destabilize the electoral system.

However, some experts expressed concern that the court’s strict interpretation could exacerbate the crisis. Advocate Peter Onyango argued that the ruling leaves the IEBC in a state of paralysis, with no immediate solution to conduct overdue boundary reviews or by-elections. “While the court’s adherence to constitutional principles is commendable, it does not resolve the practical challenge of an inoperative IEBC. This could lead to a backlog of electoral processes, potentially disenfranchising voters in affected areas,” Onyango stated. He suggested that the government consider temporary measures, such as appointing interim commissioners, to bridge the gap until permanent appointments are made.

Political analyst Sarah Mwangi highlighted the broader implications for Kenya’s political stability. “The failure to delimit boundaries on time could lead to legal challenges from citizens or political actors claiming unfair representation, especially in areas where population changes have altered electoral dynamics,” she said. Mwangi pointed out that the lapsed timeline could affect preparations for the 2027 general election, as boundary delimitation is critical for ensuring equitable representation and resource allocation.

The Supreme Court’s ruling has far-reaching consequences, particularly as Kenya approaches key electoral milestones. The inability to conduct boundary reviews could lead to disputes over constituency and ward boundaries, potentially affecting voter representation and electoral outcomes. Legal challenges are already anticipated, with citizens likely to argue that the failure to delimit boundaries violates their constitutional right to fair representation and participation in the electoral process.

The ruling also underscores the urgency of resolving the IEBC’s operational challenges. The commission’s inability to conduct by-elections in several counties has left some areas without adequate representation in Parliament and county assemblies, further straining the democratic process. Experts warn that prolonged delays in appointing commissioners could erode public confidence in the IEBC and the broader electoral system, potentially fueling political unrest.

In response to the ruling, government officials have pledged to expedite the recruitment of IEBC commissioners. The Ministry of Justice has indicated that a selection panel will be constituted to oversee the appointment process, in compliance with the High Court’s January 2024 order. However, political divisions over the selection of commissioners could complicate efforts to restore the IEBC’s quorum, as competing interests seek to influence the appointments.

Legal experts have called for a collaborative approach involving the government, opposition, and civil society to ensure a transparent and timely recruitment process. “The IEBC’s functionality is critical to Kenya’s democracy. All stakeholders must prioritize the national interest over partisan agendas to resolve this crisis,” said Dr. Wambui.

The Supreme Court’s decision to decline extending the lapsed boundary review timelines has sparked a robust debate among legal experts, with some praising the court’s strict constitutional interpretation and others warning of its practical challenges. As the IEBC remains incapacitated, the government faces mounting pressure to resolve the commission’s vacancies and restore its ability to fulfill its constitutional mandate. With potential legal challenges and electoral disruptions looming, the ruling serves as a critical reminder of the delicate balance between constitutional adherence and practical governance in Kenya’s democratic system.