Written by Carolyne Wamalwa and Indeje David
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Deputy PM Musalia Mudavadi, IEBC Chairman Isaak Hassan and Constitutional Affairs minister Mutula Kilonzo during the launch of the new electoral boundaries in Nairobi. [Photo | Isura Christopher | West Fm]
A five judge bench delivered its ruling on Monday retaining the 80 new constituencies, but ordering amendments on the location and names of the proposed County Assembly Wards on the over 125 petition cases challenging the creation of new constituencies at the Milimani Courts in Nairobi.
The judges led by Mohammed Warsame - members - Pauline Nyamweya, Ruth Sitati, Hellen Omondi and David Majanja delivered the ruling whose verdict after the new amendments will allow the Independent Electoral and Boundaries Commission -IEBC room to start registering voters for the next elections.
Further, the IEBC to effect the above it will start putting in place measures for the establishment of the 80 new constituencies after amending the Legal Notice 14 of 2012 that gazetted the commission’s report on boundaries.
The 125 applications sought to overturn the gazette notice by the Independent Electoral and Boundaries Commission regarding the proposed 80 new constituencies and the new electoral boundaries.
In May this year, the electoral commission lost in the first round of the dispute over electoral units after the five judges dismissed their objections to suits filed beyond the stipulated deadline for filing petitions.
In discharging its mandate, the IEBC exercised provisions of Article 88(4) (a) of the Constitution; which mandates the IEBC to draw the boundaries of constituencies and wards and Article 89 of the constitution which gives lengthy provisions on the delimitation of electoral units.
The petitioners had challenging the constitutionality of the new boundaries saying their Gazettement on 7th March 2012 went against Article 89 (7) of the constitution that states that the new boundaries shall come into effect upon the dissolution of Parliament.
In their ruling, the Bench dismissed constitutional petition 129/2012/Nairobi of County No.21 that is Nandi involving Kaptuya county assembly ward which the residents had proposed that the IEBC splits, renames and redraws it to reflect “one person one vote “ criteria for the Emgwen Constituency.
In its ruling, the judges said there was no way the Luhya population living in Kapkangani and Kiptua would form “such a minority can be remedied by delimitation”.
Subsequently petition 119 for Tinderet and Nandi Hills Constituency and county assembly wards were taken into consideration. The residents had proposed the creation of two more constituencies from the existing four- Mosop, Aldai, Emgwen and Tinderet.
Some of the areas that were affected include: Tinderet District in Nandi County, - residents of Lessos, Sojoi and Koilot locations took the forefront in protesting that they were marginalized when they were curved out of their preferred Nandi East constituency and instead dragged to Tindiret constituency, the area of jurisdiction of Honorable Henry Kosgey.
For these, the judges directed that: Nandi hills with a population of 107,534 to have four county assemblies – Ole lessos, Kepchenuk and Nandi hills whereas Tinderet with a population of 100691 to have Chemilili, Tinderet, Chemasee, Kapsimatu, Songor and Soba as county assemblies with the Legal Notice 14 are changed to reflect that.
Malava Constituent residents had proposed the delimitation of South Kabras and Chumuche ward, where they had proposed to move Mukhonje and Muting’ongo to Chemuche wards to Malava constituency. However the judges dismissed it saying “it was not contrary to the Constitution.”
The judges further dismissed the petition filed by the Batsotso clan in Lurambi Constituency who had opposed the hiving off Batsotso North location from Lurambi which is inhabited by the Batsotso to the proposed Navakholo constituency to be created from the current Lurambi Constituency.
The IEBC had earlier proposed that Butsotso North be included in the newly elevated Navakholo Constituency.
The judges said, “It is not disputed that before the delimitation the Batsosto and Banyala people lived harmoniously in Lurambi Constituency and the interests of the Banyala people have been taken in to consideration with the creation of the two wards.”
The same was done for the residents of Mumias East and Mumias West who had been aggrieved that if the Ekero sub location of Mumias East was removed, the population would be below the minimum threshold. Thus, the judges ruled that, “the applicants had not stated where it was to be placed in Mumias West constituency and they did not demonstrated how their common socio economic and political ties differ with their counterparts.”
In their petition, the Vihiga residents had claimed Evojo and Wanondi sub-locations of Sabatia were transferred unilaterally by IEBC to the new Emuhaya Constituency. However, during the preliminary hearings, the same residents had told the Commission that wards should remain intact and not reduced, although IEBC had proposed to merge Lugaga and Wamuluma wards which the locals rejected.
As a result, the Bench directed that, “There was a general consensus among the people of Sabatia and Emuhaya that in the event Vihiga County gained a new constituency, Emuhaya was to be delimited into twoto take into accounts the social and cultural divergent of the Bunyore and Maragoli community.”
The Judges further said there was no need to interfere in the change of the names Sabatia West to west Maragoli West. Thus, they ordered, “Wanondi and Viywalwa sub locations be removed from North East Bunyore ward in Emuhaya and be placed in Chavakali ward of Sabatia Constituency.”
This meant Chavakalili ward will comprise: Walodeya, Viyalwa, Evojo, Igunga and Wanondi with a population of 18,452 with North East Bunyore ward having Ebusamia, Ebunangwe, Ebusuloli, Emusustwi and Ebusiratsi with a population of 29,991. Thus Sabatia and Emuhaya are to be amended to reflect the changes.
Four petitions were filed as regards to the wards, constituencies and representation:
A petition filed by the western Kenya Human Rights Watch had sought for the delimitation of Bungoma, Uasin Gishu, Trans Nzoia districts seeking the counties of Bungoma, Trans Nzoia and Uasin Gishu each to have 10,6,7 constituencies respectively and 53,31,34 county assembly wards respectively.
The judges dismissed the petition ruling that, “It does not raise any specific issue or demonstrates action of the IEBC contravening the law.”
The second petition for Bungoma, Mt. Elgon constituencies had sought to quash the delimitation by compelling the IEBC to seek views of historical injustices. The petition had claimed that, “Movement Kamneru and Sachu sub locations from Kapsokwany and Cheptais Districts marginalized the Sabaot people.”
This, the judges ruled that, “No material was placed as regards to the same and that Kapsokwany and Cheptais is inhabited by the Sabaot people and the internal movement will not give rise to marginalization.”
On the other hand, residents of Sirisia had made a declaration that it was entitled to four county assemblies and not three. The judges dismissed it saying, “The population of Sirisia is legally entitled to three county assemblies and there was no need to interfere with the IEBC.”
The final petition of the judicial review of the Webuye West had sought to alter the wards of Webuye west constituency and creation of an assembly ward.
The judges said, “The case has some merits,” according to the population of Webuye West, it was entitled to 4 wards.
According to the Gazette Report by the commission, Bokoli ward comprising of Bokoli, Makhanga, Misikhu and Miendo locations with 47,238 people; Matulo ward comprising of Matulo, Malaha, Kituni and part of Township locations with 44,425 and Sitikho ward that comprises of Matisi, Sitikho, Khalimuli and Milo locations with 37,670. 45 wards were given to Bungoma County.
Residents had claimed the commission had not taken into consideration the population and size of the constituency while redrawing its boundaries.
The Judges, in their decision said Kanduyi constituency in relation to its population it had 9 wards instead of 8 because “some wards have lower population compared to wards in Webuye West. To balance and effect fair representation; Tutu and Marakaru were to be merged to create Marakarututi ward with a population of 35781.”
Thus, Kanduyi constituency was to comprise of the following wards: Musikoma, Bukembe west, bukembe East, Marakarututi, Sangalo West, Sangalo East and Khalaba Township.
Webuye West to comprise: Misikhu (Misikhu and Kituni), Bokoli (Bokoli, Makhanga, Matisi, Miendo), Matulo (Malaha, Webuye Township), Sitikho (Milo, Kalumilu and Sitikho).
The IEBC was established to deal with the conduct and management of elections and the Interim Independent Boundaries Review Commission (IIBRC) to address the issue of delimitation of boundaries of electoral and administrative units. This was implemented following the recommendations of the IREC Report (popularly known as the Krieger Report).
The bench constituted by the Chief Justice Willy Mutunga began sittings at the Milimani courts on May 29 in Nairobi.
The judges had until 5th of July to hear and determine the applications.
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