Validity of newly-created districts in doubt as Pandora’s box opened

Questions are now being raised over the legality of all the districts created by Kenya President Mwai Kibaki in the past three years.

Lawyers argue that almost all the newly-created districts are illegal since they have not been ratified by Parliament, a matter likely to spark serious debate in the country.

The lawyers, at the same time, accuse President Kibaki of usurping the role of the yet-to-be-established Interim Boundaries Review Commission, whose mandate is to establish, review and draw new administrative and constituency boundaries.

Parliament, through a select committee headed by Mandera Central MP Abdikadir Mohammed has began the process of setting up the boundaries review body.

The can of worms over the explosive matter was opened early this week by Prime Minister Raila Odinga, who, while criticising the President’s style of leadership, said he (Kibaki) did not have the constitutional powers to create districts.

The PM, during a recent trip to the Coast, said it was only Parliament that had the authority to create districts.

Said the PM: “President Kibaki is behaving in the wrong way. The districts are too many to an extent that district commissioners board matatus to attend functions.”

“According to the Constitution, the President does not have powers to create districts... why is the President usurping powers of Parliament? There should be the rule of law,” he added.
Similar concerns were also raised by retired President Daniel arap Moi.

“Where will the money come from to pay for all the new districts?” asked the former president at a recent gathering in Rift Valley Province.

On Wednesday, lawyers backed the PM’s assertion and declared that all the districts created without the approval of Parliament were illegal.

Totally outrageous

While the law does not bar the President from making public pronouncements on newly-created districts, they argued that Parliament must first approve and legitimise them.

Imenti Central MP Gitobu Imanyara told the Nation that a Bill on the new districts must be prepared by the government and be tabled before the House for MPs to ratify.

And if the Bill is approved, this would officially increase the number of the administrative units.

“Creating more than 100 new districts is totally outrageous... it is in fact illegal,” said Mr Imanyara in a telephone interview.

The MP says there was a law – the Districts and Provinces Act No 5 of 1992 – that governs the creation of districts in the country, spelling out their boundaries, beacons and other essential marks.

The law was assented to by former President Moi in 1992 and took effect in June the same year.

“It is an Act of Parliament that prescribe the districts and provinces in which Kenya is divided. What the President is doing is in contravention of this law,” said Mr Imanyara. And according to him, Kenya has only 46 legal districts.

When President Kibaki came to power on December 30, 2002, there were 70 districts.

However, he has since 2005 created more than 140 new districts, meaning that the country has more than 210 districts at the moment, according to records from the ministry of Provincial Administration and Internal Security.

This excludes the districts he created in his recent tour of Western Province.

The creation of new districts was most intense during campaigns for the 2005 constitutional referendum and the 2007 General Election as President Kibaki sought to win public support.
This was despite the President’s promise to put an end to the creation of districts for political reasons when he took over the country’s leadership in 2002.

Mr Moi had increased Kenya’s districts from 42 in 1990 to at least 70 when he left office in 2002. That’s 28 districts in 12 years.

Strained resources

The government has many a time defended the creation of the administrative units saying the move was undertaken to ensure proper and efficient management of areas based on population and landmass size.

Efforts to have the Government spokesman, Dr Alfred Mutua, clarify whether the new districts were legal were not fruitful as his phone remained unanswered.

A senior government official recently told the Nation that the new districts had strained resources at the headquarters.

“All the new DCs require offices, cars and a place to stay. This obviously calls for huge amounts of money which is not readily available,” the official said.

He said most of the new administrative units were “demand-driven”, mainly from politicians whose motivation was the distribution of subsequent jobs and government funds because public funds for development are sent to the districts. Money from the Roads Board is a good example.

The Law Society of Kenya joined in the condemnation and appealed to the President to “go slow on the matter”.

LSK vice-chairman James Aggrey Mwamu said the President was simply taking advantage of the fact that there was no concrete law on the creation of new districts.

Said Mr Mwamu: “Mr (John) Michuki went to court in the run-up to the 2002 elections to challenge the illegal manner in which the exercise was being conducted.”

He noted: “ The court ruled that proper systems must be put in place to ensure that districts are put up legally. Sadly, Parliament has not done this.”

Power sharing

Mr Mwamu said most of the districts created lacked the necessary infrastructure to develop government offices.

Some are so small and awkwardly situated that local residents prefer getting government services from their former district headquarters.

The LSK official said that with the advent of the National Accord, which stipulates power should be shared on a 50-50 basis, it was only prudent that the President consults his PM before creating new districts.

And he appealed to the President not to rush the process but wait until the Interim Boundaries Review Commission is established.