CONSTITUENCIES RACE HITS WALL

The Standard

November 17 2010

By Beauttah Omanga and Alex Ndegwa

The process of creating 80 new constituencies ran into strong political headwinds, jolted by a restraining court order, and their gazettement shot down by Government.

Parliament erupted in acrimonious debate over an alleged conspiracy to block the creation of the new political units as a frustrated Interim Independent Boundary Review Commission (IIBRC) threw to the public the draft list it gave the Government Printer for publication on Monday.

What was even more curious was commission’s revelation it submitted its draft for publication after consultations with and green light from Attorney General Amos Wako. IIBRC chairman Mr Andrew Ligale disclosed the number that had already been allocated by Government Printer to the notice was, "Gazette supplement No 83, Legislative supplement No.52, and Legal Notice No.185."

Said a frustrated IIBRC commissioner: "We are in a shock. We are in the dark we don’t understand why the printing was stopped. The chairman is trying to check with the AG."

Justice and Constitutional Affairs minister Mutula Kilonzo poured more oil on the flames when he insisted the Ligale team has no powers to publish or even gazette the names of the 80 new constituencies.

Mutula said he had differed with the Attorney General on the matter and now only the courts could decide. "The fact that the commissioners have disagreed, and Kenya has a population of 40 million people, how do you expect the citizens to agree," he added, before promptly jetting off to Geneva, Switzerland.

He said that under the old Constitution the IIBRC was required to file a report with Parliament and hand over its files to the yet-to-be-formed Independent Electoral and Boundaries Commission. Mutula claimed that during the weekend retreat in Mombasa the Cabinet and Parliament agreed that the new commission would be in place by Christmas.

New body

"So what is the hurry now to gazette the names of the new constituencies yet the body that will be charged with that work will be in place by next month," he added.

Sources reported that Head of Civil Service Mr Francis Muthaura stopped officers at the Government Press from releasing the Kenya Gazette notice. The Government Printer Mr Andrew Rukaria, however, denied receiving orders either from Muthaura or the Office of the President.

"I have not gazetted and I will not be gazetting because of the court order stopping the exercise," said Rukaria on telephone.

However, the IIBRC wanted the gazette notice published earlier in the morning before "the interruption" that delayed its publication until the court orders were given.

Circulation of the list fuelled the country’s sense of expectation for the new constituencies, which could probably have been the insurance IIBRC took to protect its list from interference by external forces.

It listed all the new constituencies as well as the retained and renamed ones under county categories, and was circulated as the court put a temporary stop to its gazettement.

The political standoff over the new units came as a Nairobi businessman associated with a presidential contender from Central Kenya secured the court order, raising questions about whether the new constituencies will be in the 2012 election roll.

For them to be incorporated in the 2012 General Election, they must have been in existence for at least a year.

The process has been marred by claims by politicians from Central and Eastern Province that their regions were discriminated against. The court order also covers the special issue of the government gazette, which is normally released on Wednesdays.

The storm could worsen as some MPs vowed to paralyse business in Parliament on Tuesday. Despite the setback, IIBRC moved to Mombasa last evening for a retreat to write its final report.

Justice Jeanne Gacheche, who gave the order, also issued interim orders barring three IIBRC commissioners from presiding over its functions, pending the court’s determination on their eligibility to hold office.

The court also stopped the gazettement of the constituencies by IIBRC, although commissioners said they had not been served with court papers. The orders against IIBRC, whose term is ending on November 27, were issued following a successful application Mr John Kimathi Maingi through his advocate, Mr Njenga Mwangi.

The application certified as urgent by the court was on grounds that gazetting of new constituency boundaries is bestowed on the Independent Electoral and Boundaries Commission, which is yet to be created as per the new constitution.

Mwangi told the court the three commissioners had not consulted the public regarding the new 80 boundaries to warrant the gazettement

Sources told The Standard that lawyers were staking out for Ligale last evening at Jomo Kenyatta International Airport to serve him with the court papers. And 21 MPs who declared support for the IIBRC warned they would paralyse Parliament business today until the controversy is resolved.

Order dismissed

The Justice Ministry is also due to issue a statement to Parliament today on the state of affairs at the IIBRC.

"We are concerned that efforts by the commission to gazette their report yesterday and today were frustrated under instructions by the Head of Civil Service to the Government Printer not to accept the report," Kisumu Town West MP Olago Aluoch told a news conference at Parliament Buildings.

The MPs, from Western, Coast, Rift Valley and North Eastern Provinces, threatened to censure Muthaura in Parliament. The MPs dismissed the court order terming it premature.

"That is premature. The court cannot purport to insubordinate the Constitution and Parliament," Aluoch added.

"Tomorrow (today) we will ensure Parliament does not transact Government business until the issue is resolved. Going to the courts or stopping the Government Printer is not an issue," Livestock Assistant minister Aden Dualle said.

They argued the list was deemed published and legally binding after a majority of the commissioners appended their signatures. "It is legal now as far as we are concerned," said Kilgoris MP Gideon Konchellah.

"We as Parliament will put our foot down and we are not going to allow the Office of the President to continue with the impunity. What was the point of a new Constitution?" asked Chepalungu MP Isaac Ruto. Dualle said the three commissioners who had broken ranks with their colleagues were insincere.

The MPs defended the distribution of the additional seats as fair and meant to correct imbalance in distribution. Justice Gacheche issued orders in a case challenging eligibility of Ligale, Ms Rozah Buyu and Ms Irene Masit’s eligibility in office. The judge said the orders are to operate until December 2 when the case will be heard.

"We were given all the necessary details that precede any official gazettement. We were shocked when we woke up to find that the Gazette Notice had not rolled out of the Government Printer. Was there a plot to delay the gazettement awaiting the court’s action?" asked Buyu.

The court’s ruling also barred Buyu, Masit and Ligale from conducting any business related to the boundaries review. But Buyu argued the law had been misinterpreted since the new law only talks of the yet-to-be established commission.

"The IIBRC Commissioners are exempted from that clause. It is the same clause that has allowed the MPs, and even Cabinet ministers to continue holding office until their term expires," she added.

In his brief accompanying the draft, Ligale wrote the distribution of the new units was as per the views given by Kenyans.

"Subsequent to such consultations and guided by the foregoing constitutional provisions, the IIBRC together with its highly qualified technical secretariat embarked on analysing the recommendations and we have completed our task and have obtained a distribution of the 80 new constituencies strictly in accordance with the constitution." He wrote.

He said his team took into account what the public wanted and the other stakeholders and always sought and worked with Wako.

"For the first time in the history of Kenya the number of constituencies in each region will be directly proportionate to the population of that region as desired in the (Rtd Justice Johann) Kriegler report," said Ligale.