Let us share out new 70 House slots openly

With each iteration of the Building Bridges Initiative (BBI), contentious issues have emerged concerning various fundamental proposals that will change the way Kenyans will be governed, represented and the allocation of resources.

The current ‘hot potato’ is the proposal to add 70 seats in the National Assembly without basing it on any particular formula. There are questions on how the allocation was done, which counties will gain, which ones will lose and what considerations dictated the decisions.

In its Second Schedule, the latest Constitution Amendment Bill simply provides a list of additional seats to be allocated to select counties. Counties, especially in northern Kenya, have not benefited from the additions which have caused many to cry foul over the criteria used. Others posit there was no constitutional basis for the allocations apart from political horse-trading.

While the Second Schedule rightly states that the Independent Electoral and Boundaries Commission (IEBC) shall undertake the delimitation exercise, it proceeds to usurp the same IEBC powers by listing counties that will benefit from the additional constituencies. Constitutionally, these powers are the sole province of IEBC based on a scientific method combined with other factors. 

For instance, Kiambu County is set to have six additional constituencies; Nakuru five; Narok, Kajiado, Mombasa, Uasin Gishu and Kwale three each; Kilifi four; Nandi one; Kakamega, Kisumu two each; Bungoma, Siaya, Nyamira, Mandera, Turkana and Nairobi one each. It is noteworthy that other counties do not benefit from the additional seats, while others benefit less from the new constituencies.

As per Article 89 of the Constitution, before delimitations are done, IEBC must consult all parties; progressively work towards ensuring that the number of inhabitants in each constituency and ward is compliant with the population quota which was 133,138.26 during the last delimitation. Moreover, any review must be done at least 12 months before the next parliamentary elections.

If done within the stipulated twelve months, the new boundaries shall not take effect for purposes of that election. Other factors that dictate the delimitation include geographical features and urban centres; community of interest, historical, economic and cultural ties; and means of communication. It also appears that these factors did not come to play in the latest proposals, and if done, no one has bothered to explain how it was done.

As a result of the opaqueness of the process, lack of public participation and the perception that certain regions were favoured over others despite population demographics and trends — there is a cloud of suspicion over the proposed allocation of constituencies in some counties.

Any process of delimitation of representative units must as far as possible ensure effective representation that equally conveys the will of the electorate in a representative governance structure. This is aimed at ensuring the equality of voting power for each vote to provide effective representation in our democracy. It is noteworthy that the Constitution goes further to provide for representation of special groups such as special seats for women, marginalised groups, the youth and persons living with disability.

Each constituency

One of the stimulus of the reforms that culminated in the Constitution of Kenya 2010 was the need to inculcate fair representation that has a real-life impact on equality before the law, equality of representation, fairness in decision-making and resource allocation. For instance, going by current numbers, every constituency comes with around Sh100 million in CDF funds annually, translating to half a billion every five years for each constituency. As such, any delimitations must be done in a fair, open, participatory process that abides by the constitutionally prescribed standards, as opposed to boardroom discussions between political players.

The closest phenomenon that this can be compared to the current process is gerrymandering — which is a USA term describing the sneaky practice of drawing the boundaries of electoral districts in a way that gives a political party or formation an unfair advantage.

Often, the practice dilutes the voting power of marginalised groups or groups not close to power. This must not be allowed to happen in Kenya. 

-Kiprono is a Constitutional and Human Rights Lawyer. demaslaw@gmail.com