House report: Six counties short-changed on new constituencies

Six counties were short-changed in the proposed distribution of 70 extra constituencies by the Building Bridges Initiative (BBI) given their population, a parliamentary committee report has revealed.

And eight other counties are overrepresented and should have lost a constituency each, said the joint report of the Justice and Legal Affairs committees of the National Assembly and Senate.

Meru, Kitui, Bungoma, Homa Bay, Kisii and Nairobi deserved additional constituencies, according to a simulation by the Kenya National Bureau of Statistics (KNBS) based on 2019 population census results.

IEBC review

Homa Bay, Kitui and Kisii, which missed out on the list of 28 counties proposed to benefit, each ought to have got an extra constituency, KNBS told MPs during scrutiny of the Constitution of Kenya (Amendment) Bill 20202. 

Meru and Bungoma, which are earmarked to get an extra one and three constituencies, respectively, should have secured an additional one each.

And Nairobi, which secured the lion’s share (12) ought to have got an additional four constituencies to raise its tally of new electoral units to 16, according to KNBS. 

While the BBI is beyond amendment, the revelation are a pointer to regions that are likely to benefit from a review of boundaries by the Independent Electoral and Boundaries Commission (IEBC) that is due.

With a population of 4.3 million, according to the 2019 census, with one of the heaviest population densities in the country, where up to 6, 247 people live in a square kilometre, Nairobi is under-represented and should have 33 MPs, the KNBS said.

Kitui, with a population of 1.13 million people spread over 30,430 square kilometres, should have had an extra constituency, bringing its total to nine.

Wiper leader Kalonzo Musyoka, who comes from the county, has argued Kitui was disadvantaged.

“In the extra 70 constituency there isn’t any scientific formula used. For example, in the Lower Eastern counties, Machakos is supposed to get three extra seats and Makueni one while Kitui gets nothing. Kitui is the size of Rwanda. In terms of population, Machakos has 1.4 million people and Kitui 1.3 million, so what scientific formula is used?” Mr Musyoka was quoted as saying in December last year, as the debate on the constituencies raged.

KNBS also says that Bungoma, which received three extra constituencies in the BBI Bill, should have received four according to its population of 1.67 million people.

At the same time, Kisii, with 1.26 million people in 1,323 square kilometres, should have one extra constituency to bring its total to 10. In the first BBI report Homa Bay had an extra constituency, which however disappeared in the final version used to collect the over one million signatures to send the Bill to the 47 county assemblies.

No changes 

Fearful of these kinds of concerns, Orange Democratic Movement (ODM) leader Raila Odinga early this year promised Busia and Homa Bay, but it was a debate which soon died down after concerns were raised that the BBI Bill could no longer be amended at this point.

And while the BBI report says an extra 70 constituencies should be created, KNBS says only 68 should be added based on the population quota of the 2019 census.

Tana River, Lamu, Taita Taveta, Marsabit, Samburu, Elgeyo Marakwet, Baringo and Vihiga were, if the BBI Bill passes, over-represented and should have lost one constituency each, according to KNBS.

BBI justifies the retention of the constituencies in these counties by using the protected clause where electoral units that did not meet  the population quota were still allowed to exist, anyway.

 “For greater certainty, any protected constituency in the counties of Tana River, Lamu, Taita Taveta, Marsabit, Isiolo, Nyandarua, Nyeri, Samburu, Elgeyo Marakwet, Baringo, Vihiga and Busia shall not have their protected status impaired by the delimitation of additional constituencies mentioned in this schedule,” the BBI Bill states.

Even though they had not met the population criteria, the Andrew Ligale-commission that reviewed constituency boundaries 2012 allowed the existence of the constituencies with the understanding that it will be reviewed in the subsequent delimitation of boundaries.

The constituencies that were saved in 2012 are Lamu East, Lamu West, Mvita, Mwatate, Wundanyi, Voi, Bura, Galole, Ndaragwa, Tetu, Murkurweini, Othaya, Kangema, and Mathioya.

Others are Samburu East, Marakwet East, Keiyo North, Mogotio, Vihiga, Budalang’i, Isiolo South, Kilome, Laisamis, North Horr, Saku, and Mbeere North.

According to the law, the population of a constituency must be higher or lower than its quota by 40 per cent for cities and sparsely populated areas, and 30 per cent for other areas.

The quota is arrived at by dividing the total population by the 290 constituencies.

After the 2019 Census, this calculation will be based on its figure of 47.6 million Kenyans.

Using this formula, the population quota in the planned review will be 164,014—the critical figure that IEBC will use to determine the fate of constituencies using the set criteria.

This means constituencies in urban cities and sparsely populated areas will have a maximum of 229,621, and a minimum of 98,409.

All other areas will have a population of a maximum of 213, 219 and a minimum of 114, 819.

In the KNBS simulation, Lamu County should only have one constituency, while Taita Taveta be reduced from four to three; Tana River from three to two; and Samburu from three to two.

Marsabit, the biggest county in Kenya with 70,944 square kilometres, should have only three constituencies instead of four while Vihiga, the second smallest county in Kenya by size, should only have four instead of five.

In the proposed constituencies in the BBI Bill, Nairobi County will take the lion’s share at 12, Kiambu (6), Nakuru (5), Kilifi (4), with Mombasa, Kwale, Machakos, Uasin Gishu, Narok, Kajiado, and Bungoma getting three each, while Meru, Trans Nzoia, Bomet, Kakamega, Kisumu will get two each.

The entire Nyanza region of Kisumu, Siaya, Homa Bay, Migori, Kisii and Nyamira only got four extra constituencies, with Kisumu getting two as Siaya and Nyamira got one each. Mandera, Embu, Makueni, Kirinyaga, Murang’a, Turkana, Nandi, Laikipia, and Kericho will get one additional constituency each.

Deputy President William Ruto had, in a statement last year, also waded into the debate, asking the BBI backers to allow IEBC a window to alter the sharing of the constituencies as stated in the Bill.

“We are happy that 70 constituencies have been proposed to enhance representation. While we agree with the principle of equality and equity in representation, IEBC should vary the proposed constituencies by up to 20 percent so as to capture and accommodate the most expansive, arid and largely marginalized areas including Garissa, Nyeri, Wajir, Nyandarua, Kitui, Kisii and Migori,” the Ruto-led TangaTanga team had said in a statement on December 3, 2020.

It is important to note that the joint committee has termed as unconstitutional the distribution of constituencies among the 28 counties, saying it was usurping the role of the Independent Electoral and Boundaries Commission (IEBC).

"The Committee found that the second schedule of the Bill is unconstitutional. . . This is because the schedule does not amend Article 89 (4) of the Constitution. Even with the provision, Article 89 (4) would still exist and operate. As such, this will create parallel and conflicting mandates to review the names and boundaries of constituencies,' the joint committee says in its report.

BBI has sought to suspend the provisions of Article 89 (4) of the Constitution which bars the application of new constituencies and boundaries in an upcoming General Election, if the delimitation was done one year to that poll.

But Nairobi senator Johnson Sakaja, in a minority report backed by six MPs, dismisses the committee, saying they had erred in their conclusion.

"The use of the word "unconstitutional" in the main report is extremist. The allocation of the constituencies as set out in the proposed Second Schedule of the Bill remains the proposal or the idea of the promoters and there can be no justification for Parliament to purport to oust this proposal on grounds of legal technicalities. This would amount to usurpation of the constituent sovereign power, which belongs to the people," Mr Sakaja said.

The Nairobi senator argues that the distribution of constituencies does not amount to taking over the IEBC's role.

"What the promoters of the BBI have proposed cannot be conclusively defined as delimitation. This is an allocation of constituencies and in order for the same to take effect, the provision of Article 89 applies save for clause (4), which has been proposed to be ousted. Consequently, the IEBC still retains powers to delimit," Mr Sakaja said.

The BBI Bill will be tabled in both the Senate and the National Assembly on Wednesday for debate in special sittings called by the two Speakers.