Boundary review must reflect broad national consensus

Njoki Ndung'u

The release of the 2009 census results this week is welcome. Pending the unexpected glitches in some regions, which errors the Planning Minister Wycliffe Oparanya assures us will not affect the overall conclusion of the exercise in any major way, we can now conclude just how many we are.

The Interim Independent Boundaries Commission can now proceed to complete its work under the Sixth Schedule of the Constitution, which is to create 80 more constituencies and rationalise wards in accordance with the representation formula as provided for in Article 89 of Chapter Seven. The formula was created to correct past political gerrymandering of constituency and ward boundaries, which has resulted in the incredible voter population differences between constituencies like Embakasi or Kisauni compared to Lamu East or Mvita, resulting in a grossly skewed representation of persons in the former within our Parliament.

The formula thus ensures a more equitable representation of all Kenyans, including a fairer distribution of devolved resources, such as the Constituency Development Fund.

The underlying principle in Article 89 is the equality of the vote, using a stated population quota as the average population in a given constituency. Dividing the population of Kenya by the 290 constituencies now fixed in the Constitution, you arrive at the quota. If we take the figures used by Mr Oparanya, the population of 38,610,097 will be divided by 290, to give 133,138 inhabitants as the average population per constituency.

The new Constitution does, however, allow for a maximum deviation from the population quota, of less 40 per cent for densely populated areas, and up to 40 per cent more for sparsely populated areas, and allowing 30 per cent in other areas. This means that the least populated constituency, in a sparsely populated area, cannot have less than 79,883 inhabitants, while the most populated in a densely populated area cannot exceed 186,393. In all other areas of the country, the smallest population cannot be less than 93,197 and the largest cannot exceed 173,079 inhabitants. Since the next review of boundaries will be done only after eight to 12 years, it would be wise for the commission to consider the projected growth rates, to ensure no constituency will exceed the constitutional deviation percentage allowed in the interim period.

However, the commission is required to progressively work towards ensuring the number of inhabitants in each constituency and ward is, as nearly as possible, equal to the population quota. To do so, the commission shall alter the names and boundaries of constituencies, and the number, names and boundaries of wards.

However, for the purposes of the 2012 General Election only, the number of 210 existing constituencies will not be lost. But nothing prevents the commission from altering their boundaries to achieve the legal population quota.

This may be the only solution of dealing with constituencies that do not meet the quota or do not meet the necessary criteria upon which deviation can be allowed or whose population is below or above the maximum deviation allowed from the quota.

As required by law, all Kenyans now need to give views to the commission, so that the adjusted delimitation of constituencies and wards reflects a broad national consensus while respecting the law.

It is likely the county boundaries will have to be adjusted to accommodate the delimitation changes of the constituencies and wards, and there is a separate law to deal with this.

The writer is an advocate of the High Court