Kiunjuri brings back population versus land mass talk through Bill

Laikipia West MP Mwangi Kiunjuri during the National Assembly Committee on Transport & Infrastructure sitting at Continental house on November 24, 2022. [Elvis Ogina, Standard]

Debate on population as opposed to land mass, has been reignited in Parliament after Laikipia East MP Mwangi Kiunjuri moved an amendment to the IEBC Act.

The Service Party leader, yesterday appeared before the Justice and Legal Affairs Committee (JLAC) of the National Assembly, to dissect his proposed amendment to the Elections Act, dubbed Independent Electoral and Boundaries Commission (Amendment) Bill, 2023.

The Kiunjuri Bill seeks to introduce amendments that if passed by Parliament would help resolve population inequalities within constituencies that according to him undermine universal suffrage based on the aspiration for fair representation and equality of the vote.

He noted that fundamental to realisation of this principle and to resolving inequalities in constituency sizes is the recognition that the equal opportunity to cast a vote - which is fully realised in Kenya- can mean little if the strength of that vote is not equal.

"Critical to fair constituency boundary is the fact that although the Constitution permits other factors -'geography, economics, urban-rural conflict, and other non-legal factors - to be considered in drawing of constituency boundaries, there are other factors,'' he told the team.

He said the changes would cure the inequalities, and further protect the fundamental right to representation as guaranteed in the Constitution.

"Current electoral inequalities cannot be resolved within a single member constituency system like ours: Inter-county differences in constituency sizes cannot be resolved by an electoral system - like ours- that is only based on territorial constituencies. In urban areas, one could end up with unreasonably small constituencies- a few high-rise apartments- while in rural areas- the size of constituencies would make representation impossible,'' he said.

The Laikipia East MP said the legislative proposal recommends that Parliament fundamentally re-think the design of our electoral system and adopt constitutional reforms that embrace a combination of territorial constituencies and political party lists.

"That would mean moving Kenya from the single-member constituency-based system we now have to a Mixed Member Proportional Representation System, MMR. In such a system, parties would present MPs for election in single-member constituencies and then after those elections they would be allocated seats in proportion to the number of votes they get," he said.

Kiunjuri said the amendment directs IEBC to resolve population inequalities within constituencies undermine the requirement for Art. 81 (d) - universal suffrage based on the aspiration for fair representation and equality of the vote.

He said failure to factor this principle in the delimitation of boundaries further undermines the provision of Art. 27 in the Bill of Rights - the achievement of equal benefit before the law.

"Therefore, we would like an amendment providing for Constituency Boundaries and Determination of Equality of the vote - to achieve fair representation that accords/agrees with Article 89 (7) (b) - that in reviewing constituency and ward boundaries, the Commission shall ...(b) progressively work towards ensuring
that the number of inhabitants in each constituency and ward is, as nearly as possible, equal to the population quota," he said.

Such amendments he said should reiterate the constitutional commitments to equal franchise and non-discrimination and spell out explicitly the duties and requirements that IEBC must comply with in reviewing constituency and ward boundaries or renaming them.

He averred that the primary criterion should be population because other constitutional principles and rights including the equality of the vote, the equal protection of laws, and the centrality of political rights to the protection of all other rights, including the equitable sharing of resources are in play.

Kiunjuri seeks an amendment to make IEBC ensure fair representation and equality of the vote within counties in the coming boundary review exercise including parliament's obligation to ensure proper boundary limitation.

"Parliament has a duty- under Article 82 of the Constitution- to make a law for delimitation of electoral units for the purpose of elections for members of the National Assembly and of the Country Assemblies. Such a law having not been made, the IEBC, draws such boundaries as if it had plenary discretion to carry out the exercise
with the result that constituency size varies greatly both within and across counties.

He noted the nature of constituency inequalities within counties and gave an example of Mombasa County, where the mean of 103,453 for each of the seven constituencies, Kisauni, the largest constituency by number of voters has 135,276 registered voters whilst the smallest, Jomvu, has only 75,085 a difference of 60,191 registered voters.

This pattern, Kiunjuri said cuts across many counties.

The George Gitonga Murugara (Tharaka) led Justice and Legal Affairs Committee is expected to deliberate on the Bill, before making a determination of whether it will be presented before the plenary for debate.

The Bill seeks to amend Section 2 of the Act to insert the definition of "population quota" as defined in Article 89(12) of the Constitution; which defines population quota as the "number obtained by dividing the number of inhabitants of Kenya by the number of constituencies or wards, as applicable, into which Kenya is divided."
The Bill also seeks to amend the Act to include the provision of a framework for the delimitation of Constituencies and wards as part of the objects of the Act.

The Bill also seeks to amend Section 36 of the Act to require that any delimitation of electoral boundaries applies to the most recent national census figures and is in line with the principle of universal vote based on the aspiration of fair representation and equality of vote. Additionally, the Bill seeks to amend the section to provide that population quota shall be the primary consideration in the delimitation of electoral boundaries.
"Such a process needs to allow variation of margin of not more than forty percent for Cities and sparsely populated areas, and thirty percent for other areas as provided for under Article 89(6) of the Constitution," said Kiunjuri.

Further, where the commission makes a determination to vary the population quota, it shall provide reasons for each variation and ensure such determination is in line with the principles of fair representation and equality of vote.