Article 89 of the Constitution provides for 290 constituencies from where members of the National Assembly are elected, whose names and boundaries shall be reviewed by the Independent Electoral and Boundaries Commission (IEBC).
This will be done at intervals of not less than 8 years, and not more than 12 years, provided that the review shall be completed at least 12 months before a General Election.
This means if a general election is to be held within 12 months after completion of a review by IEBC, the new boundaries shall not take effect for that election. The IEBC is also mandated to review the number, names, and boundaries of wards periodically without setting ceilings for the number of wards.
The criteria for the review are also provided by this article and elaborated in the Elections Act and its Regulations. Each constituency’s or ward’s inhabitants should be “as nearly as possible” equal to their population and if the number of inhabitants in a constituency/ward is greater or lesser than the population quota (the total population divided by the number of constituencies/wards) it should be by a margin not more than 40 per cent for cities and sparsely populated areas and 30 per cent for the other areas.
The IEBC 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. Also, in reviewing electoral boundaries, IEBC is required to consider geographical features and urban centres, the community of interest, historical, economic, and cultural ties, and means of communication. Public participation and consultation of stakeholders is mandatory. IEBC last reviewed electoral boundaries in March 2012 and must undertake a similar exercise no later than March 2024. To undertake this exercise, IEBC must be fully constituted with a chairperson and commissioners, which is not the case.
The process of appointing commissioners, removed after the 2022 elections, had commenced even before the terms of the chairperson and other commissioners expired but it was arrested by politics and is on hold pending the bipartisan political dialogue between Kenya Kwanza government and Azimio-One Kenya. It is not clear what will happen at the end of these talks. What is clear is compliance with the Constitution must not be suspended and the review of boundaries should proceed therefore, IEBC should be reconstituted soonest and before March 2024.
This is because the review is implemented and overseen by the commissioners who also lead meetings with stakeholders and the public participation. The review process cannot proceed without commissioners.
A number of issues also require to be addressed. For example, during the 2012 review, stakeholders agreed that those constituencies that did not meet all the criteria, including the population quotas and others, be awarded as a one-off meaning that if they did not meet the criteria they risk being merged or absorbed by others.
Furthermore, the Constitution specifically provides that there shall be 290 constituencies. This is one of the reasons why around 26 constituencies that did not meet the criteria were allowed to exist. We know from past experience that politicians will not agree to cede or lose constituencies and therefore, IEBC should expect serious pushback of any attempts of merger/collapsing of existing constituencies.
However, IEBC, with concurrence of stakeholders can hive sections/sublocations of other constituencies to help those that did not meet the criteria meet it in 2024. Also, it is hoped where the population was sparse in 2012, the number of inhabitants has increased while other factors will also be met.
In 2019, IEBC commenced the review but it did not take off as expected although they had indicated they had done almost all the groundwork. The bipartisan talks are literally holding the reconstitution of IEBC and electoral boundaries review.
There are also bipartisan political proposals to increase the number of counties and constituencies. This will require constitutional amendments, which will not be viable by March 2024. The processes therefore should be separated to ensure the review of electoral boundaries takes off in accordance with the law.