There are currently over 40 disputes between counties caused mainly by poor or lack of delimitation and demarcation of their boundaries, mismanagement of inter-county resources, and misunderstanding of the functions and purposes of county boundaries.
The most affected counties are Kisumu-Kericho, Isiolo-Meru, Turkana-Baringo-West Pokot, Kitui-Tana River, Kisumu-Vihiga, Makueni-Taita Taveta, and Kisii-Nyamira.
For the past 10 years, there has been no clarity on how to address these county border disputes.
This, together with lack of a mechanism to handle county border issues, has exacerbated these disputes and contributed to a wide range of approaches by a number of county governments to address them.
For instance, some counties such as Turkana have considered legal recourse while some residents of Vihiga county have petitioned the Senate to claim parts of Kisumu County. The Council of Governors also consider courts as the best avenue for reducing tensions in most counties. A number of counties have approached the National Land Commission, the Ministry of Lands and even the IEBC to address their border disputes.
It is notable that Article 5(1)(f) of the NLC Act encourages the commission to apply “traditional dispute resolution in land conflicts,” and Article 5(2)(f) gives it a mandate to “develop and encourage alternative dispute resolution mechanisms in land dispute handling and management.” This however does not give the NLC the powers to address county border issues such as delimitation, boundary adjustments, and management of resources straddling county boundaries.
The IEBC also does not have a mandate to address these disputes since the 2010 Constitution only allows it to delimit ward and constituency boundaries. Instead, Article 188 of the Constitution calls for the National Assembly to establish an “Independent Commission” to address county border disputes.
Both the National Assembly and the Senate have variously attempted to address these disputes without much success. The latest is a draft County Boundaries Bill 2023. This bill if passed into law will create an Independent County Boundaries Commission and a County Boundaries Mediation Committee to settle the counties boundary disputes.
The dramatic increase in county boundary disputes is highly correlated to ethnic segregation in counties, which are mutations of colonial districts that were created to keep tribes apart and to easily pacify and control them. The British primarily created tribal districts to facilitate the subjugation and domination of the African population and exploitation of their resources.
Where ethnic groups were not large enough to compose a district, minor tribes were cobbled together. When inter-communal tensions arose in multi-ethnic districts, exclusive divisions, locations and sub-locations were created for some of the communities.
For instance, Meru district had nine divisions mirroring the subgroups in the administrative unit. However, the Tharaka considered themselves a distinct group that was marginalised and demanded its own district.
Capitalising on historical grievances of marginalised groups, post-colonial governments created political districts to boast their elections chances. Between 1992 and 2002, districts were doled out to induce political support from various ethnic groups, particularly those in districts with one dominant community.
Unfortunately, the penchant of divvying out administrative units exacerbated tribal chauvinism, or what is also referred to as negative ethnicity. It is this phenomenon that is hampering the administrative performance of many counties.
Consequently, 46 districts were created in 1992 through the Districts and Provinces Act, while 30 more were created between 1992 and 2002 with the sole purpose of influencing swing areas in the elections to boast presidential election victories. This Act ambiguously defines boundaries that were inherited by the current counties.
For instance, it uses language such as “thence generally southerly, north-westerly and again generally, southerly,” “as far as a point on that straight line,” “a straight line westerly to a point midway between the most southern point,” and “easterly by that road reserve boundary for approximately 2 kilometres.”
The 2010 Constitution was expected to be an elixir to political impulses of creating administrative units. The First Schedule of the Constitution established 47 counties but did not stipulate how new counties can be created. However, it states under Article 188 that county boundaries can be altered by a “resolution…recommended by an independent commission set up for that purpose by Parliament; and passed by the National Assembly, with the support of at least two thirds of all of the members of the Assembly; and the Senate, with the support of at least two-thirds of all of the county delegations.”
The Article also lists 7 criteria for altering county boundaries that include promotion of the objectives of devolved government. But creation of new county will require a referendum, as per Article 255, since it will alter the “structure of devolved government.”
Why have county boundaries become highly emotive and politically charged hot potato issue? Counties have become alternatives for political patronage, on which Kenyan elites heavily rely to live conspicuously. Political elites have been at the centres of advocating or agitating for creation of political units or adjustment of boundaries of existing ones to create or expand their enclaves for practicing political patronage.
Ethnic favouritism has generally emerged due to weak county governance institutions that are incapable of constraining tribal leaders from discriminating citizens from minority communities. These tribal elites have grossly misunderstood the purpose, meaning and functions of county boundaries.
These elites should not be allowed to treat county boundaries as a means to awarding rights to one dominant group and to exclude or to marginalise minor ones. This is not only contrary to the letter and spirit of the 2010 Constitution but also a recipe for dismemberment of the nation. Depending on how boundaries are used, they can either glue and bind or disembowel communities that have historically and socially coexisted for centuries.
Studies show that political frictions, economic mismanagement and disputes or tensions over boundaries associated with ethnic fractionalisation deny county governments huge revenues, and unnecessarily interfere with the nation-building project.
The clamour for territorial claims, boundary adjustments and creation of new counties is being spearheaded by political elites who want their own dens of corruption, nepotism and tribalism. How can we suppress this clamour?
First, we should not create more counties to accommodate rapacious elite appetite for material acquisition but ensure that county governments efficiently and effectively provide public services and goods.
Second, county boundaries should not be sources of divisions and threats to national peace but rather the glue of the nation and bridges of national cohesion.
Third, the National Cohesion and Integration Commission should sensitise Kenyans on the benefits of peaceful coexistence, the purpose of county boundaries and guiding objectives of devolution. In doing this, the NCIC should de-emphasise county boundaries as lines of division, exclusion and discriminative possession.
Fourth, we should not envisage creation of new counties before settling current manifest and latent boundary disputes.
Fifth, we should establish a standing body, as proposed by the Senate, to resolve and settle county boundary disputes and to assist counties to manage their borders in mutually beneficial ways.
Lastly, instead of creating new counties, we should impose strict constraints on practices that are undermining efficient and effective performance of the current counties. For instance, we should criminalise ethnic discrimination and marginalisation in county governments and deemphasise boundaries that divide, exclude, and create hostility among Kenyans.
There is no gainsaying that good governance is the antidote for ethnic chauvinism that fertilises and nurtures ethnic discrimination, which in turn instigates county border disputes and triggers urges for creation of more ethnic enclaves. A country composed of such cocoons has a short shelf life and is guaranteed to collapse under the weight of ethnic fractionalisation. We should not allow politicians to exploit ethnic fractionalisation for their own benefit.
Prof Wafula Okumu is the Executive Director of The Borders Institute, and Dr Paul Kibiwott Kurgat is Senior Lecturer in the Department of History, Political Science and Public Administration at Moi University, former IEBC Commissioner and Kenya's former ambassador to Moscow, Ukraine and Malaysia.