The electoral commission says it might defer the planned review of constituency boundaries until after the 2022 General Election.
The Constitution mandates the Independent Electoral and Boundaries Commission (IEBC) to adjust the boundaries at intervals of not less than eight years, and not more than 12 years, with the commission now opting for the 12-year deadline that expires in 2024. The last boundary review was done on March 7, 2012.
“The statutory timeframe for the boundary review exercise is between eight years and twelve years,” IEBC Chairman Wafula Chebukati told the Nation in an email response.
Due to the Covid-19 pandemic, Mr Chebukati said, not much actual work on the planned review has been done.
“The commission had planned to commence boundaries review exercise, starting with preliminary activities, in March this year. The commission has since undertaken desk review exercise. However, visitations to constituencies for meetings with stakeholders and the public at large was halted due to the outbreak of the Covid-19 pandemic,” Mr Chebukati said.
Were the IEBC in the unlikely event decide to go ahead with the review before the 2022 polls, it has to complete it by July 2021.
“If a General Election is to be held within 12 months after the completion of a review by the commission, the new boundaries shall not take effect for purposes of that election,” reads Article 89 (4) of the Constitution.
The IEBC has been allocated Sh150 million in Supplementary Budget II for the boundary review, money that will be used for the preliminary plans to delimit electoral areas.
“We have barely a year to ensure everything is done before July 2021 (if we stick with the eight-year lower limit). This includes a dispute resolution period of about 4 months,” Mr Chebukati said in a TV interview in May.
“So what we as a commission will do is, once the situation calms down as far as the pandemic is concerned, start the exercise and if we are not done with it, we will stop and focus on the General Election and then we can finish the remaining part thereafter,” he added, with the 2024 deadline now looking more and more likely to be the final decision.
The commission, however, has a leeway in law to change the number of wards from the 1,450 currently.
“The exercise will involve review of both constituencies and wards based on the criteria provided for in the existing laws. The commission cannot alter the total number of constituencies (290) but may alter the boundaries and names of the constituencies,” Mr Chebukati said in the interview.
When it finally conducts the boundaries delimitation, the IEBC will have to address the highly political headache of the fate of 26 constituencies whose existence the Andrew Ligale-commission of 2012 allowed despite not meeting the population quota.
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 that constituencies in urban cities and sparsely populated areas will have a maximum of 229,621 and a minimum of 98,409 people. All other areas will have a population of a maximum of 213, 219 and a minimum of 114, 819. Politically, it would be a tall order for the commission to do away with an existing constituency.
The other option would be to balance out the population by redrawing ward boundaries or transferring a ward from a populous constituency to areas with fewer people to help both meet the population quotas.
However, the provision that “boundaries of each constituency shall be such that the number of inhabitants is, as nearly as possible, equal to the population quota” may provide an avenue for the IEBC to make the same concessions the Ligale team made.
Mr Chebukati’s proposal is already drawing fire from political leaders who are keen to seen boundaries reviewed before the polls. Budget and Appropriations Committee chairman Kanini Kega opposed the plan, saying IEBC was being unfair to those constituencies that were awaiting the review.
“There were mistakes that were done in the 2012 review and constituencies like mine have had to live with it for the last eight years. We cannot live with it for another five. The IEBC should do the review before the 2022 elections so that we can start benefiting from this right away,” Mr Kega said.
“If they do it after the 2022 elections, it means that it will only apply in the 2027 elections, and that will be completely unfair.”
But Senate Minority Whip Mutula Kilonzo Jr supported the proposal to push the boundary delimitation until after the poll, saying Kenya already had too much to chew on.
“The elections are too near to start boundary review. With the BBI around the corner, we can't take up all these matters, including preparing for a referendum and also reform IEBC,” Mr Kilonzo Jr said. Mathare MP Anthony Oluoch, who sits in the National Assembly’s Justice and Legal Affairs Committee, said IEBC was not barred from pushing the review to after the 2022 polls.
“If they are to do it and have it apply to the 2022 elections, then they have to conclude it by July 2021, being 12 months to the elections. But even if they don’t do it before the polls, the 2022 election will not be invalid because of it,” Mr Oluoch said.
Nandi Senator Samson Cherargei, the immediate former chairman of the Senate Justice, Legal Affairs and Human Rights Committee, advised IEBC to postpone the exercise.
“IEBC, as it stands, has issues of capacity because of resignations of four commissioners, as well as budget constraints. I agree with them that it might not be practicably possible to do the boundaries review before the 2022 election what with the Covid-19 pandemic, and the heightened political environment in the country at the moment,” he said.
