Fast-track county boundaries bill

Kuria West MP Mathias Robi (left) and his Kura East counterpart Marwa Kitayama

Kuria West MP Mathias Robi (left) and his Kura East counterpart Marwa Kitayama (second left) with traders in Homa Bay last year. Mr Robi has proposed a Bill seeking to create Kuria, Teso, Mount Elgon, East Pokot and Mwingi counties, which would raise the number of devolved units to 52.

Photo credit: George Odiwuor | Nation Media Group

A constitutional amendment bill by Kuria East MP Kitayama Marwa seeking to increase the number of counties by five has been floated for debate although the full draft is yet to be published. Hiving them from the existing counties will require alteration of boundaries.

Under Article 188 of the Constitution, county boundaries can only be altered by a resolution recommended by an independent commission set up by Parliament for the purpose.

The proposal would then be passed by at least a two-thirds majority in the National Assembly and a similar proportion of the county delegations in the Senate.

There is no statutory and institutional framework for alteration of county boundaries. But there is a pending County Boundaries Bill of 2021 that seeks to give effect to Article 188 by creating the independent commission, anchoring the county boundaries in law, and providing for resolution of county boundary disputes. MPs must fast-track it before debating the ‘Marwa Bill’ on additional counties.

Without a substantive law giving effect to Article 188, any attempt at creating counties is susceptible to legal contestation and possible nullification.

MPs are free to table any constitutional amendment bills but any recommendation to alter county boundaries should originate from the envisaged independent commission that parliament is yet to establish.

The proposal to create counties must also eventually pass through a referendum as dictated by Article 255(1)(i) of the Constitution.

The required threshold for such a proposed amendment to sail through is an approval by at least 20 per cent of the registered voters in each of at least half of the counties voting in a referendum and support by a simple majority of the citizens voting in the plebiscite.

Mr Naibei is an advocate of the High Court of Kenya and governance analyst. [email protected].