The emotive issue of redrawing of boundaries is shaping up as the next political battlefront that is likely to pit President William Ruto and Opposition leader Raila Odinga since its outcome will have a major political bearing in the next polls.
Already, a group of 25 lawmakers drawn from both camps have closed ranks to propose the creation of an additional 10 counties in what could complicate further the periodic review of constituency boundaries that has to be done by March next year.
Reviewing of boundaries is a political process because it defines the geographical areas for rulers and their subjects, access and distribution of economic benefits.
It also defines the identities of a people owing to their historical attachments to certain geographical features of significance.
At the heart of the current agitation for additional counties is the perception of marginalisation of some communities. Some feel that because of their inferior numbers, they have been denied representation at the county level.
Lawmakers from both the ruling Kenya Kwanza and opposition Azimio La Umoja One Kenya Coalition have proposed the creation of counties of Kuria, Teso, Mount Elgon, East Pokot, Mwingi, Gucha, Suba, Ijara, Nakuru West, and Wajir South.
Creation of more counties would alter the resource-sharing structure and increase cost of administration. It would also alter the composition of the Council of Governors (CoG), the Senate and the National Assembly by having additional governors, senators and Woman Representatives.
At the same time, leaders from populous regions – who have been pushing for the one-man-one-shilling principle – argue that their vote-rich areas are under-represented in Parliament.
They are pushing for additional constituencies that translate to more resources to the grassroots.
Each of the 290 constituencies are entitled to equal amount of the National Government Constituency Development Fund (NG-CDF) irrespective of population.
Additional constituencies mean more MPs in Parliament which is crucial in taking votes on crucial bills.
The number in Parliament is also critical in electing members to the East African Legislative Assembly.
On the flip side, constituency boundaries review spells doom for 26 electoral units that failed to meet the set population quota but were protected during the last review. Sparsely populated regions, like North Eastern, could be hard hit.
Tetu, Ndaragwa, Mukurweini, Othaya, Kangema, Bura, Galole, Isiolo South, Kilome, Laisamis, North Horr, Saku, Mbeere North, Lamu East and Lamu West constituencies risk being merged or collapsed if they again fail to meet the required population quota.
Others are Mvita, Mwatate, Wundanyi, Voi, Mathioya, Samburu East, Marakwet East, Keiyo North, Mogotio, Vihiga, and Budalang’i.
If the current number of 290 constituencies is to be retained, automatically some of the sparsely populated regions would lose some of their constituencies unless their protection is extended.
Alternatively, the country can amend the Constitution through a referendum to increase the number of constituencies to take care of population increase and areas that are densely populated to ensure equitable resource sharing.
There are indications that the number of constituencies, currently capped at 290 by the Constitution, is likely to be affected as population growth has increased the quota to 164,015 from the 133,000 that informed the 290 constituencies in 2010.
The population quota is the figure obtained by dividing Kenya’s 2019 population of 47,564,296 by the number of constituencies.
“The drawing up of new constituencies can easily end up in court if one party is gerrymandering constituencies to gain more safe seats or to disenfranchise its opponents,” says Prof David Monda.
He explains, “Boundary reviews have massive implications on the balance of power in parliament. Depending on the voters captured in each constituency, political parties can strategically carve out constituencies that have most of their followers to get safe seats. Conversely, they can divide opposition constituencies hostile to them to dilute the voting power of their opponents.”
Jubilee Secretary General Jeremiah Kioni says the ongoing talks may not address the issue of boundaries exhaustively within the provided 60 days. He describes the exercise as delicate and with a potential of polarising the country.
Ndaragwa constituency, which he represented in the last Parliament, is among the 26 constituencies that were protected during the last review.
“We need soberness in this discussion because it has a potential of sparking instability. Some of the protected constituencies would be lost unless we amend the constitution to increase the number of constituencies.
“This country has to address the question of resource allocation so that we don’t have a scenario where students in some constituencies are able to access more CDF money because of their small population, when another set of learners can hardly benefit from CDF,” Mr Kioni explained.
National Assembly Minority Leader Opiyo Wandayi said the review was necessary to address historical injustices that emerged during the last review.
“We must be prepared to live with the outcome of the exercise, including merger and collapse of some of the protected constituencies so long as the process is done in a fair and just manner,” said Mr Wandayi.
With the last review having happened in March 2012, IEBC is expected to ensure that the validation of constituency boundaries is on track to meet the March 2024 deadline.
IEBC chief officer Marjan Hussein Marjan told Sunday Nation that there was an urgent need to have a fully constituted commission to undertake the crucial exercise.
“Guided by previous judicial determinations, the Commission can only conduct the delimitation proper when constituted with a Chairperson and Commissioners. The Chairperson has the responsibility of publishing, through a gazette notice, the intent of the Commission to undertake delimitation,” says Mr Marjan.
He explains that the commission has until March 5, 2024 to conduct the exercise, barely six months from now.
“There is, therefore, an urgent need to have a Commission Chairperson and Commissioners in post in order to undertake the constitutional mandate of delimitation of constituency and ward boundaries,” he says.
He argues that should the Commissioners not be in post in good time, the country would have to enlarge the constitutional timelines for delimitation under Article 89 of the Constitution. He adds that since the exercise touches on representation, it would require a referendum to review the timelines.
Constitutional lawyer Bobby Mkangi says the country could fail to review the boundaries if IEBC does not act in good time. He, however, argues that since the constitution provides that such a process be done at least 12 months before the next general election, the political class could negotiate to have it done before the 2027 polls even after the provided deadline elapses.
“It can be done so long as it is finalised 12 months before the next elections. But, if IEBC is not in a position to conduct the exercise since it is currently dysfunctional, the cure would be status quo,” explains Mr Mkangi.
Mr Mkangi – who was a commissioner in the nine-member committee of experts that drew up the 2010 Constitution, also termed the push for additional counties as premature.
According to Article 188 of the Constitution, the boundaries of a county may be altered only by a resolution recommended by an independent commission set up by Parliament and passed with the support of at least two-thirds of the MPs.
The same has to get concurrence from the Senate by at least two-thirds of the county delegations.
The Article provides that the boundaries may be altered to take into account population density and demographic trends, physical and human infrastructure, historical and cultural ties, the cost of administration, the views of the communities affected, the objects of devolution of government and the geographical features.
Opponents argue that splitting the counties would deny them economic strength.
It would also reduce allocation for development as much of the resources would be spent in recurrent expenditure and to put up infrastructures like new county assemblies, county headquarters among other items.
“From my experience as a governor, we need to consolidate the existing counties instead of adding more. Adding more counties would not be viable economically,” said former Kakamega Governor Wycliffe Oparanya.
“You need a bigger county for a more viable economic growth. The current discussion should be about how to reduce the number from 47 counties to 14. You have seen counties trying to create economic blocs for purposes of achieving economies of scales,” he explained.
Senate Majority Whip Boni Khalwale said the devolved units would only make economic sense if they are reduced to a total of 10 counties comprising of Western, Nyanza, North Rift, South Rift, Nairobi, Upper Eastern, Lower Eastern, North Eastern, Coast and Central.
He suggests that the Senate should have a total of 62 senators, with the 10 counties electing 20 representatives – a man and a woman.
In their memorandum to the National Dialogue Committee co-chaired by Wiper Leader Kalonzo Musyoka and National Assembly Majority Leader Kimani Ichung’wah, the 25 lawmakers cited the right of communities to manage their own affairs.