Votes do not have the same weight – some are heavier than others, especially if they are cast in a sparsely populated rural area.
In some constituencies, such as Isiolo South, Lamu East, Tarbaj, Eldas, Fafi and Lafey, a candidate who mobilises 10,000 votes could easily be elected as a member of Parliament. Conversely, in Nairobi constituencies such as Starehe, Embakasi South, and Westlands, election requires one to muster as many votes as those needed to occupy the governor’s seat in some counties.
The right to fair representation and equality of the vote rose up on Kenya’s list of electoral priorities during the crisis over the putative 2007 election.
The cure proposed by Johann Kriegler-led Independent Review Commission on the 2007 election was regular redistricting. The Constitution set the ceiling on the number of constituencies at 290, and decreed that a regular review be conducted every eight to 12 years.
Constituencies are required to have a number of inhabitants that is as near as possible to the population quota – obtained by dividing the number of inhabitants of Kenya with the number of constituencies. Two upwards and downwards deviations are permitted from the population quota – a 30 per cent deviation for sparsely populated areas and a 40 per cent deviation for urban areas.
Population quota threshold
After the first boundaries review in 2012, which used the 2009 census figures, all the constituencies that were in existence at the time were preserved – even when some of them did not meet the population quota threshold. That moratorium was expected to be corrected during the next review, which was expected anywhere between 2020 and 2024. The inequality of the vote has distorted Kenya’s democracy over three elections, by skewing parliamentary numbers in a manner that defangs traditional checks and balances.
It is incongruous that after the 2019 census, and nine years after the first boundaries review, the chair of the Independent Electoral and Boundaries Commission blithely dodged his constitutional responsibility by claiming that there was no room to review constituency boundaries since a general election was due the following year.
Although the Constitution provides that boundaries should not be reviewed at least one year before elections, it also provides that “if a general election is to be held within 12 months after completion of a review … the new boundaries shall not take effect for purposes of that election.”
A poor reading of the Constitution resulted in IEBC failing to embark on a review that could have been completed, but whose results would not have affected the 2022 election. The population, as per the 2019 census, had risen to 46.7 million. The population quota, going by the 2019 census, is 164,014, which can swing between 114,809.8 for sparsely populated areas and 229,619.6 for densely inhabited urban areas.
Voter registration numbers for 2022 in Kisauni, Nyali, Mvita, and Kilifi North already burst the upper limit for urban areas, as do those for South Imenti, Machakos Town and Mavoko. Kiharu, Juja, Thika Town and Ruiru face a similar crisis, as do Laikipia West, Naivasha Town, Njoro, Nakuru Town East and Nakuru Town West. Similar pathologies are evident in Kajiado North and Kajiado East, Alego Usonga, Kisumu Central, Turbo and Kanduyi.
Marginalisation and discrimination
In Nairobi, the population in Westlands, Lang’ata, Dagoretti South, Kasarani, Embakasi South, Embakasi Central, Embakasi East, Roysambu and Starehe all scream for the creation of at least one constituency, while keeping the total at 290. Until mid this year, the IEBC had no commissioners and could, therefore, not carry out boundary delimitation.
The National Dialogue Committee unlocked the impasse over the appointment of IEBC commissioners, but when they got into office, they were preoccupied with filling vacant electoral positions and launching a continuous voter registration. Meanwhile, Parliament had sought to preserve some 40 problematic constituencies in their present form.
On the advice of the Kenya National Commission on Human Rights, the IEBC secretariat approached the Supreme Court asking for an advisory opinion on what to do. The Supreme Court was not impressed by the handwringing and dismissed the request for an advisory opinion because it had not been made by commissioners. Perhaps the IEBC will go back to the Supreme Court for advice, but it is out of time, and the injustice of boundaries persists 15 years later.
There have been claims of perceived marginalisation and discrimination by the Sabaot living in Bungoma and Trans Nzoia counties; residents of Wajir South, Tiaty, and Teso, Kuria and Suba, which make the question of boundaries redistricting no longer one of fairness but a powder keg with the potential to scuttle the 2027 election.
Some 7,048 new voters have been registered since the launch of voter registration last week. If nothing else, this is proof that the IEBC is answering the wrong examination question correctly.
The writer is a board member of the Kenya Human Rights Commission and writes in his individual capacity. @kwamchetsi; [email protected]
