Chebukati faults plan to increase constituencies

Hillary Mageka @hillarymageka

 The Independent Electoral and Boundaries Commission (IEBC) yesterday dismissed as unconstitutional the establishment of new 70 constituencies proposed by the Building Bridges Initiative (BBI).

IEBC chairman Wafula Chebukati said their views were not sought by the defunct Building Bridges to a United Kenya taskforce in coming up with the number of additional constituencies.

Chebukati said while BBI proponents and promoters are right to create new electoral areas, they erred in allocating the constituencies to specific counties without the poll agency’s input.

He said the exercise of allocating constituencies to counties is the preserve of the commission as stipulated in Articles 84(4) (c) and 89 of the Constitution.

“A constitutional amendment process can only determine the number of constituencies but should not assign the same to respective counties as is the case with BBI Constitution of Kenya Amendment Bill 2020,” Chebukati said.

“In the event the Bill is passed as is, it will contradict the existing articles 88 (4) (C) and 89 of the Constitution of Kenya thus presenting possible legal challenges to the delimitation process,” he added.

In the past, promoters of the BBI said they used population generated by the Kenya National Bureau of Statistics (KNBS) and a 2015 IEBC report on boundary delimitation to decide the counties to get additional constituencies, with priority given to those underrepresented in the National Assembly.

“The commission did not give such a report to the BBI team, the only document we have on boundary review is the Andrew Ligale report issued on March 4, 2012,” Chebukati said.

The IEBC boss explained that like the 2008 Interim Independent Boundaries Review Commission was given the mandate to delimitate 80 constituencies to be added to 210 constituencies, the promoters of BBI should have done the same.

He narrated that the BBI proponents should have allowed IEBC to delimit 70 constituencies by using the formula as stipulated in Article 89 and allocate them to respective counties.

“The commission is of the view that the role of allocating any proposed additional constituencies should be left to the commission in line with Article 88 (4) (c) and 89 of the Constitution,” he said, adding that it was the case in the last constituency delimitation process.

Chebukati spoke when he appeared before the joint Justice and Legal Affairs Committee of Parliament on the Constitution of Kenya (Amendment) Bill, 2020.

Transition clause

The Bill proposes to increase the number of constituencies from 290 to 360. The constituencies are distributed among 28 of the country’s 47 counties. The Bill designates that the larger Rift Valley will get 23 new constituencies, Nairobi 12, Central Kenya 11 and Coast 10.

Kiambu County will get six new constituencies, Nakuru 5, Kilifi 4, while Uasin Gishu, Narok, Kajiado, Mombasa, Kwale and Bungoma counties will get three each.

Meru, Bomet, Kakamega and Kisumu counties are slated to get two new electoral areas each while Mandera, Embu, Makueni, Kirinyaga, Murang’a, Turkana, West Pokot, Nandi, Laikipia, Siaya and Nyamira have been allocated one each.

The commission is required to determine the new constituencies within six months after the commencement of the Act. The law demands that the electoral body concludes the review 12 months to the General Election.

Article 89 (2) of the Constitution states that the “commission shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than 12 years, but any review shall be completed at least 12 months before a general election of Members of Parliament”.

Chebukati, however, sounded a warning, saying the six-month period stated in the transition clause for the delimitation exercise to be completed is not adequate based on past experiences and practice.

He disclosed that during the first delimitation under the Constitution of Kenya 2010, the Andrew Ligale Commission undertook data collection and first round of public hearing from May 2009 to November 2010, a period of 11 months.

Thereafter, he said, the successor IEBC took over from January 2012 and conducted the second round of public hearings, delimitation, publication of the first and second drafts of the delimitation of ward boundaries and publication of the national assembly constituencies and county assemblies order 2012 on March 6, 2012.

Chebukati said delimitation of the new 70 constituencies will need at least two years to complete the exercise which is likely to affect preparation and conduct of the 2022 general elections. 

He said the process of delimitating electoral units is highly emotive and if done improperly and hurriedly may fail to comply with constitutional requirements as set out in article 89 of the Constitution, potentially resulting in numerous boundary disputes and litigations ahead of the general elections.