By Victoria Magar
The Court of Appeal’s 7-Judge bench hearing the appeal case on Building Bridges Initiative (BBI) was on Tuesday told that it is Kenyans’ prerogative to decide whether there is a need for more constituencies to be created.
The Attorney General’s office through lawyer Kamau Karori submitted that the Independent Electoral and Boundaries Commission (IEBC) has no say at all on determining the creation of new constituencies as was ruled by the High Court Judges who shot down the BBI process.
“The Constitution does not give the IEBC the mandate, power or authority to create constituencies to add to the number of constituencies or indeed to reduce the number of constituencies,” he said.
The BBI proposes additional 70 new constituencies and an affirmative action clause that could create up to 300 new Members of Parliament.
The 5-judge led by Professor Joel Ngugi in their landmark ruling on May 14 ruled declared that the electoral body is the one tasked with the role of determining boundaries and that the BBI proposal for the creation of 70 new constituencies was against the law.
Karori however, stressed that the Constitution is explicit that the role of IEBC is to only carry out delimitation of boundaries and faulted the High Court Judges for disregarding the Constitution.
“So it was wrong for the High Court to decide that the people will not have the right to determine for themselves the appropriate number of constituencies at this time and where those constituencies should be allocated. It is only the people that can make that determination, just the same way they determined that they want 290 constituencies and they decided where these constituencies will be,” he said.
Article 88 of the Constitution stipulates that IEBC is responsible for the delimitation of constituencies and Wards. Article 899 (2) further states that “IEBC shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than twelve years, but any review shall be completed at least twelve months before a general election of members of Parliament”.
Karori noted that the allocation of the new constituencies to specific counties is not a legal question but a political one that ought to be determined by the citizenry.
In his defense, Attorney General accused the High Court Judges of relying on Wikipedia and Google to dismiss the BBI process.
He pleaded with the judges to validate the exercise and allow it to proceed to the referendum stage where Kenyans will have the final say on the documents fate.