IEBC admits failure to review boundaries risks credibility of 2027 election

The Independent Electoral and Boundaries Commission (IEBC) has told the Supreme Court that the 2027 General Election will be unconstitutional unless electoral boundaries are reviewed, warning that the failure to carry out the process could invalidate the entire election.

Through its lawyers, the commission admitted the legal deadline for reviewing boundaries had already lapsed, but maintained that skipping the exercise would undermine the credibility of the election and expose it to legal challenges.

IEBC lawyer George Murugu, while responding to questions from Supreme Court judge Njoki Ndung’u, confirmed that failure to review boundaries would affect the legitimacy of the election.

"Justice Njoki Ndung’u asked a very, very serious question. Does it mean that, without the delimitation exercise being carried out as ordered by the Constitution, and the timelines having passed, it will affect the legitimacy of the 2027 result? My answer is yes," Murugu said, as quoted by the Standard.

Justice Njoki had raised the issue after the commission admitted that the last boundary review was done in March 2012, meaning the constitutional requirement to conduct a review every eight to twelve years has already been breached.

Another IEBC lawyer, Edwin Mukele, told the court that the commission should be allowed to complete the exercise by July 2026.

He warned that failure to do so would disrupt key electoral preparations such as voter registration, audit, and inspection of the register.

"If IEBC is not allowed to review the boundaries, there will be a ripple effect. The election requires delimitation of the boundaries. The product of the delimitation means there will be a lot of transfer of voters, audit and inspection of the register, and that is an extreme matter for this court to consider as the election is around the corner," Mukele said.

He further said that using outdated census data tied to old boundaries would deny citizens fair representation and equal access to development after 2027.

The judges questioned why the commission had waited until the last minute to raise the issue.

Justice Isaac Lenaola criticised the legal request filed by IEBC CEO Marjan Hussein Marjan, suggesting the commission was asking the court to validate a constitutional breach.

"The breach is continuing, and by the court extending the timelines without the mandate of the Constitution, are you asking the court to breach the Constitution itself?" asked Justice Lenaola.

He also noted that the matter had been complicated by a High Court decision that stopped the vetting of IEBC nominees submitted by President William Ruto.

Deputy Chief Justice Philomena Mwilu asked the Attorney General to clarify their position, suggesting the office seemed to be siding with both parties.

She said earlier advice from the AG had pushed the IEBC to seek court guidance.

Principal State Counsel Odiwour Kaumba, representing the AG, said the office had told Marjan not to file the case since the commission lacked a full panel of commissioners.

She noted that the timelines for boundary review had already passed and could not be revised.

She added that no boundary review can legally happen without all seven commissioners in place, making the current situation legally unworkable.

However, her remarks conflicted with the position of former Attorney General Justin Muturi, who in April 2024 warned that failure to conduct the boundary review would expose IEBC to lawsuits and allegations of denying Kenyans fair representation.

Muturi advised that only the Supreme Court could offer proper direction on the matter.

IEBC CEO Marjan said the commission had no choice but to seek the court’s opinion after receiving Muturi’s letter.

He warned that the country risks holding another election without updated boundaries, which would create unfair and unequal representation across all 1,882 elective seats.

"As things stand now, the process is yet to commence since IEBC has no commissioners in office apart from deskwork which was conducted by the secretariat and the now retired commissioners," said Marjan.