A truck drives through Migingo area in Mtito Andei Town in Makueni County.
| Pius Maundu | Nation Media GroupCounties
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The endless border rows and failed attempts by Senate to fix them
Ten years since the inception of devolution, the national government has been accused of failing on its mandate to provide solutions to at least 17 counties involved in boundary disputes.
Efforts to resolve border wrangles brought about by the urge to collect more taxes and levies to enrich respective counties’ own source revenue kitty and political push to have more numbers during elections have been identified as two key issues resulting in disputes.
Different government agencies, the Council of Governors (CoG), the senate, the National Assembly, Judiciary have tried to intervene to reconcile warring counties in vain but now the focus shifts to the Independent Electoral and Boundaries Commission (IEBC), a constitutional body mandated to deal with election and boundaries.
Some of the counties affected by boundary disputes include Taita-Taveta, Makueni, Kajiado, Kwale, Isiolo, Meru, Nandi, Machakos, Turkana, West Pokot, Baringo, Kisii, Nyamira, Kisumu, Homa Bay, Busia and Vihiga
With the IEBC expected to conduct a review of boundaries not only for counties, after the full constitution of the Commission was abolished and position of IEBC chairman and six Commissioners declared vacant, the new commission’s top in the to-do list is to resolve the boundaries and also in some contentious 27 constituencies.
Article 89(2) of the Constitution requires IEBC to undertake delimitation of boundaries between eight to 12 years, and the next phase, which should conclude by 2024, is to be guided by the 2019 census that placed the population at 47.5 million.
The last boundary review, which created the current 290 constituencies, was undertaken in February 2012 by the Andrew Ligale-chaired Interim Independent Boundaries Review Commission.
A periodic review of constituency boundaries is necessary to keep up with population growth to accommodate new constituencies for populous units. This will in turn guarantee equitable representation and fair distribution of resources such as constituency funds.
Already, the stage is set for the review of boundaries after Members of Parliament approved an additional Sh7.2 billion for the exercise in July this year.
Lawmakers approved a report of the Budget and Appropriation Committee (BAC) that proposed the allocation to the IEBC and another allocation of Sh1 billion for the construction of Uchaguzi Centre.
The allocation is over and above the ceiling of Sh4.25 billion the commission has been given for the management of election processes.
The coming boundaries review is expected to turn into a battle pitting leaders from different counties but more so from Taita-Taveta, Makueni and Kwale where the three counties are fighting over key towns along Mombasa-Nairobi highway for revenues and political numbers.
Mtito Andei town has been at the centre of the administrative boundary row for a long time between Taita-Taveta and Makueni counties.
Taita-Taveta leaders argue the border between the two counties is in Mtito Andei, therefore part of the town is its territory but Makueni claims the boundary is at Man Eaters, inside Tsavo National Park near Tsavo River.
Taita-Taveta governor Andrew Mwadime and his Makueni counterpart Mutual Kilonzo have remained with hard stands each claiming the town thus causing dispute between the two devolved units.
Governor Mwadime has called on Kwale and Makueni Counties to allow his administration to collect revenue at the disputed towns of Mtito Andei and Mackinnon Road respectively as ordered by the court. Governor Mwadime has accused his counterparts from the two neighbouring counties of flouting court orders over the collection of revenue in the two disputed towns.
"The two counties are aware of the issued orders but they have decided to act contrary," Governor Mwadime said.
Last year, the High Court in Mombasa directed Taita Taveta to collect revenue at the disputed Mtito Andei and Mackinnon Road towns after Busia Senator Okiya Omutata moved to court on behalf of Taita Taveta residents seeking to have the dispute resolved.
Justice Lucas Naikuni had temporarily appointed the county as the only authority to issue business permits and collect taxes in Mackinnon Road and Mtito Andei towns.
The court ordered that the revenue be deposited in two separate accounts opened jointly with the neighbouring counties.
Taita-Taveta County’s department of Finance and Economic Planning, this year notified traders in Macknon and Mtito Andei, the two disputed towns that revenue collected will be deposited into a joint account number 1305279751 domiciled at KCB Voi branch.
“Further to a court order ref; ELC PET No 33 of 2021 dated 29/9/2021 issued by Environment and Land Court of Kenya at Mombasa, the general public is hereby notified that the County government of Taita-Taveta has started collecting County levies and issuing business permits within Mtito Andei,” read the notice by Simeon Mwakio, Director Revenue Management.
The orders did not go well with both Makueni and Kwale County administrations who have asked traders in the disputed areas to continue paying the taxes as before. Up to date, both administrations have declined to take part in the account opening.
Early this year, revenue officers from Taita-Taveta were chased away by some residents from the areas as they tried to collect revenue at the disputed towns escalating the border row.
Governor Mwadime accused his counterparts of disregarding the order thereby denying his government the much-needed revenue that would transform the lives of the residents.
He called on the county security teams from the neighbouring counties to compel them to comply with those orders.
"The law must be respected by everyone. Therefore, these county governments should respect and comply with the order. Please help me to implement the court order," he said.
But Makueni governor Mutula Kilonzo has however maintained that the matter is being handled by CoG and urged his residents not to comply with the court order.
On January 6 this year, the governor said, “We are asking no one not to pay taxes to the Taita-Taveta since the matter has been forwarded to the Council of Governors.”
The matter is currently before the Intergovernmental Relations Technical Committee (IGRTC) and the Council of Governors.
In January this year, CoG met the three governors; Mr Mwadime, Ms Fatuma Achani (Kwale) and Mr Mutula (Makueni) in a bid to intervene to resolve the longstanding dispute.
The CoG resolved to form an Ad-hoc Committee to adopt an Alternative Dispute Resolution (ADR) mechanism to resolve the dispute. However, little progress has been made regarding resolving the dispute.
Kwale County also has a border issue with Taita Taveta affecting Mackinon town along Mombasa Road.
Kwale claims its boundary with Taita Taveta is at Miasenyi, a few kilometres from Mackinnon Road town, while the latter holds that its boundaries extend to Landi ya Mwembeni, near Taru town.
Mr Mwajoto Mwasoko, a Meli Kubwa resident said the wrangles have affected locals as a section of the area politically is in Kwale while administratively is in Taita-Taveta County.
“We have Mbele Primary and Secondary schools which operate as an island as the title is being held by Kwale county while administratively including hiring and posting of teachers is done by the Taita-Taveta government. This is causing confusion as not only to teachers but also to parents since they cannot get bursaries from their local MCA and MP,” said Mr Mwasoko.
In many parts of Mackinnon Road, the residents have been getting Water service from Taita -Taveta County but the issue has raised concerns, area leaders claiming they are losing millions of shillings a year to the county, money which could have been invested in Kwale.
Mackinnon Road MCA Lennox Mwagawary accused Taita-Taveta water company (Tavevo) of exploiting locals by overcharging them.
"The county loses about Sh4 million which is paid to Tavevo every month as our records indicate there are more than 3000 people connected to piped water by Taita-Taveta and they are using this service to claim the town," said Mr Mwagawary.
Governor Achani has since maintained Kwale will not submit any funds to the joint kitty as stated by court since the boundaries are still clear and Mackinnon Road Town is within Kwale.
"We are asking Taita -Taveta County to follow administrative law and concentrate on revenue collection within their jurisdictions. On water, already her county has moved to supply water to the locals through Kwale Water and Sewerage Company," said the governor.
Since the inception of devolution, Taita Taveta has not collected revenue in her border towns of Mtito Andei and Mackinnon Road owing to a protracted boundary dispute with Makueni and Kwale counties.
The county claims ownership of the two towns along the busy Mombasa/Nairobi Highway.
The row over the two border townships has been ongoing since 2013.
