The Supreme Court’s Advisory Opinion on the Boundary Delimitation Question

The Supreme Court’s Advisory Opinion on the Boundary Delimitation Question

On 5^th September 2025, the Apex Court of Kenya delivered its Advisory Opinion No. E004 of 2024 in the matter submitted by the Independent Electoral and Boundaries Commission (IEBC). This was not just another legal procurement but a moment of reckoning for the country’s electoral governance and constitutional order. The case cut to the heart of Kenya’s electoral architecture on how to handle the constitutionally mandated process of electoral boundary delimitation when the very body responsible for it had been left headless and inoperative for over two years.

The Court’s determination however, turned to be a double-edged response. On one hand the justices stretched their advisory jurisdiction to address questions about IEBC’s capacity in the absence of Commissioners. On the other hand, they refused to give a definitive guidance on the core issue—the boundaries delimitation question—arguing that without a properly constituted Commission, the request was illegitimate. This tension between intervention and restraint leaves the country in a delicate limbo as it marches towards the 2027 General Elections.

The Parties’ Positions

IEBC’s Submissions

The Commission’s argument was framed around the tension between strict constitutional timelines and the substantive principles of fair representation. While acknowledging that Article 89 set rigid timelines, it urged the Court to interpret the Constitution holistically. In its view, Articles 38 and 81, which guarantee equality of votes and political rights, could not be undermined simply because Commissioners were absent for reasons beyond the Commission’s control.

IEBC argued that excluding the period when there were no Commissioners from the reckoning of time would strike a balance between the timelines and the democratic imperative of fair representation. It cited U.S. jurisprudence such as Reynolds v Sims (1964), which emphasised “one person, one vote” to stress that delimitation is indispensable for electoral legitimacy.

The Commission also defended its right to approach the Court despite lacking Commissioners. It cited previous cases, such as Muruli v Oparanya & 3 Others (2016) eKLR, where the court had held that its institutional mandate must continue even in the absence of Commissioners. It pointed out that its Secretariat had continued to defend suits and perform essential functions and argued that seeking constitutional guidance was well within its remit.

The Attorney General’s Submissions

The AG took a contrary position. He insisted that IEBC was not properly constituted and therefore could not validly file the Reference. He replied on the principle that a corporate body can only sue or be sued through resolutions of its governing organ—in this case, the Commissioners. Without Commissioners, the Reference lacked legitimacy.

The AG also argued that the questions raised were already before the High Court in Kilifi, making the matter sub judice. He further claimed that the issues were neither novel nor urgent, since the timelines had already expired and Parliament was in the process of amending Article 89 through a constitutional amendment bill. In essence, the AG’s position was that the Court should decline to issue the advisory opinion, leaving the matter to the legislative process.

The Court’s Determination

The Supreme Court, sitting as a full bench, carefully parsed the question before it. Its response was, in many ways, a study in judicial balancing—intervening where it deemed public interest demanded it, but restraining itself where it feared venturing into hypothetical terrain.

On Jurisdiction to Render the Advisory Opinion

 The Court first affirmed its jurisdiction under Article 163(6), holding that boundary delimitation concerns county governments and thus fell squarely within its advisory remit. It acknowledged however, that the Commission’s Secretary lacked authority to file the Reference on behalf of a Commission with no Commissioners. Ordinarily, thus defect would have been fatal.

Yet the Court chose to “stretch its advisory jurisdiction” in light of public interest. Drawing from its own precedents, including In the Matter of Principle of Gender Representation in the National Assembly and the Senate (Advisory Opinions Application 2 of 2012), it held that advisory opinions may be issued in exceptional cases even where procedural defects exist, so long as issues are of great public importance.

On the substance, the Court clarified the division of labour between IEBC ‘s Secretariat and Commissioners. It held that the Secretariat may perform administrative tasks—contracts, litigation, staff management—but cannot undertake constitutional functions under Article 88(4), such as delimitation of boundaries or conducting elections. These functions require the collective deliberation of Commissioners. This was a critical clarification, confirming that while the Secretariat can keep IEBC afloat, it cannot substitute the Commissioners.

On IEBC’s Mandate-taking of Boundary Delimitation in the Absence of Commissioners and Lapse of Timelines

When it came to the boundary delimitation question, however, the Court took a very different approach.  The bench decline to give guidance, holding that only a duly constituted IEBC could seek directions on the effect of lapse or possible extension of timelines. To pronounce itself in the absence of Commissioners would amount to a hypothetical determination, something the Court has consistently avoided.

The Court noted the Parliament was already seized of the matter through the Constitutional Amendment Bill, 2024 which proposed mechanisms for extending timelines where necessary. It deferred to this legislative process, underscoring the principle of separation of powers. In its final orders, the Court overruled the AG’s preliminary objections but struck out the Reference for want of proper continuation of applicant.

The Road Ahead: What Next for IEBC

When the constitutional timelines lapsed in March 2024, if effectively meant that the existing constituencies and wads drawn in 2012 were no longer legally complaint. Under a strict reading of Article 89, in absence of a timely review casts doubt on the legitimacy of these units. In principle, constituencies and wards that were due for review ceased to exist in law, even though they continue to operate in practice. This legal fiction creates a constitutional gap in that if IEBC were to proceed with the 2027 elections without fresh delimitation, Kenyans would be voting in constituencies and wards whose legal foundation had expired thus exhuming illegitimacy.

The legitimacy of the 2027 elections is therefore directly tied to whether IEBC can, in the short time remaining, conduct a credible delimitation exercise. But this leads to another pressing hypothetical: if IEBC were to now conduct delimitation, blessed by the Supreme Court, what happens to the constitutional cycle of 8–12 years? Would the next delimitation be reckoned from 2024, when it should have occurred, or from 2025–2026, when it is actually carried out? If the latter, then the following delimitation would fall around 2033–2037, effectively shifting the entire cycle and creating permanent distortion.

This tension raises a constitutional puzzle: does a delayed delimitation reset the cycle, or should the next review still be tied to the original constitutional clock? If the cycle resets, the Constitution’s design of regular and predictable reviews is weakened. If the cycle does not reset, then IEBC may be compelled to conduct two delimitations within a short span—one before 2027, and another just a few years later—an administrative and political nightmare.

Equally, now that new Commissioners were sworn in on 11^th July 2025, the question shifts from the Court to the Commission itself. The Supreme Court has effectively said, “this is your mandate, and only you can decide on which approach to take.” The options before IEBC are stark. The Commissioners can opt to wait for Parliament’s amendment of Article 89. This path avoids legal risk but delays action and risks further erosion of public trust, especially if political actors slow-walk the legislative process. Another option is to seek a fresh advisory opinion. Now that the Commission is properly constituted, IEBC could return to the Supreme Court for definitive guidance. This would provide legal cover but risks consuming time that is already in short supply before the 2027 elections.

The Supreme Court’s Advisory Opinion No. E004 of 2024 was both clarifying and inconclusive. It clarified the roles of IEBC’s Secretariat and Commissioners, affirming that constitutional functions cannot be undertaken in the absence of Commissioners. Yet it left the most pressing question—whether IEBC can conduct delimitation after lapse of timelines—unanswered, citing lack of a properly constituted applicant. As Kenya approaches the 2027 general elections, this unresolved question looms large. Without delimitation, the elections risk being conducted on outdated and unequal boundaries, threatening the very principle of electoral justice. The question then remains, “what will IEBC do next?” Will it boldly initiate delimitation to fulfill its constitutional duty, or will it defer to Parliament and risk undermining the credibility of the 2027 elections? The answer will shape not only the next electoral cycle but also the future of Kenya’s democratic legitimacy.