Public Participation Crucial In Determining Electoral Boundaries

Republic v Interim Independent Electoral and Boundaries Commission & another exparte Eliot Lidubwi Kihusa & 5 others [2012] eKLR

High Court at Nairobi – Judicial Review Division

M. Warsame, RN Sitati, HA Omondi, P Nyamweya & D Majanja JJ

July 9, 2012

Judgment

Constitutional law – electoral and boundaries law – delimitation of electoral and administrative boundaries – decision of the Independent Electoral and Boundaries Commission declaring the names, population and boundaries of wards and constituencies – duty of the Commission to comply with the Bill of Rights, Article 89 of the Constitution and the Independent Electoral and Boundaries Commission Act in the delimiting exercise – political rights - right to vote - right to representation – rights of minorities - principles of electoral systems - public participation and consultation - whether the decision of the Commission violated the Constitution and the law – whether the Commission had failed in its obligation to ensure public participation and consultation in the delimiting exercise - Constitution of Kenya Articles 10, 19, 20, 38, 40, 56, 81, 88, 89, 174, Sixth Schedule - Independent Electoral and Boundaries Commission Act sections 36, Fifth Schedule – Survey Act (Cap. 229) sections 29, 39, 41

Constitutional law – interpretation of the Constitution – Constitution of Kenya Article 259(1)

Statute – interpretation of statute – constitutionality of a statutory provision – Constitution prescribing three months as the time within which an application for the review of a decision on the delimitation of electoral units is to be heard – statute prescribing thirty days for a court to determine such a matter – whether the statute was inconsistent with the Constitution - Constitution of Kenya Article 89 - Independent Electoral and Boundaries Commission Act Fifth Schedule section 4

Jurisdiction – High Court – jurisdiction of the High Court – whether the Court had jurisdiction to review to the decision of the Independent Electoral and Boundaries Commission on the creation, naming, population, distribution and boundaries of constituencies and county wards – incidence of scope of the court’s power – Constitution of Kenya Article 22, 89(11), 165, 259(9) - Independent Electoral and Boundaries Commission Act sections 36, Fifth Schedule

The Constitution of Kenya (Amendment) Act, 2008 amended Kenya’s former constitution to dissolve the then Electoral Commission of Kenya and to create two interim bodies; the Interim Independent Electoral Commission (the IIEC) and the Interim Independent Boundaries Review Commission (the IIBRC). After a national exercise of consultations and review of the boundaries of various administrative units, the IIBRC presented its report (the IIBRC Report), in November 2010, which determined the names and details of the boundaries of 290 constituencies. The IIBRC also published the names of the constituencies in the National Assembly Constituencies Order No. 2 of 2010.

Whereas it was mandated to determine the optimal numbers, names and boundary details of County Assembly Wards, the IIBRC was unable to deliver on this mandate because the county wards came into force through a new Constitution promulgated in August 2010, long after the IIBRC had held public consultations. The IIBRC recommended that the existing local authority wards established under the Local Government Act (Cap. 265) should serve as wards until County Assembly Wards were determined in accordance with the new Constitution. It also noted that its work was to run up to June 2011 hence it was unable to conduct field surveys to confirm the maps for the 290 constituencies in line with the names and boundary details it had determined.

The IIBRC Report was adopted by the National Assembly in December 2010. In its transitional provisions, the new constitution preserved the IIBRC but created the Independent Electoral and Boundaries Commission (IEBC) in Article 88(4)(c). The IEBC was to be responsible for the delimitation of constituencies and wards. The Bill of Rights of this new Constitution guaranteed political rights, including the freedom to make political choices and the right to free, fair and regular elections based on universal suffrage. Chapter Six on representation of the people set out how the right to vote is realized. Article 81 set out the general principles for the electoral system, including the freedom of citizens to exercise their political rights; gender representation quota in elective public bodies; fair representation of persons with disabilities; universal suffrage based on the aspiration for fair representation and equality of vote; and free and fair elections.

In order to operationalize the activities of the IEBC, the Independent Electoral and Boundaries Commission Act (the IEBC Act) was passed. Section 36 empowered the IEBC to resolve all issues relating the delimitation of boundaries of constituencies and wards arising from the report of the IIBRC. In addressing the issues arising out of the first review, IEBC was restricted by the IEBC Act and section 2(1) of the Fifth Schedule to use the IIBRC Report as its primary reference material and the report of a parliamentary committee on the IIBRC Report as secondary reference material.

Ultimately, in March 2012, after a national exercise of public consultations, the IEBC published the National Assembly Constituencies and County Assembly Wards Order, 2012 through Legal Notice No. 14 of 2012. This Order contained the decision of the IEBC concerning the delimitation of constituencies and wards. The formula used by the IIBRC and the IEBC to distribute the constituencies was based on a national constituency population quota of 133,138, being the product of dividing the total country population (over 38 million) by the number of legally mandated constituencies (290). To this quota was added or subtracted a number representing the percentage variation prescribed by Article 89(6) of the Constitution for a city, sparsely populated areas, and other areas as the case may be to arrive at population quotas of 186,394 for cities; 79,883 for sparsely populated areas; and for other areas, not more than 173,079 and not less than 93,197. The IEBC then mathematically redistributed the 290 constituencies within the existing provinces to arrive at 17 constituencies for Nairobi and 284 for other provinces but taking care to protect constituencies with populations below the quota. In effect, some constituencies were split and others were renamed.

The methodology applied by the IEBC in the delimitation of County Assembly Wards took into account the county population quota. This quota was arrived at by dividing the total population of the county by the number of constituencies in the county. The total number of constituencies in the county was multiplied by five, being the ideal number of county wards per constituency as recommended by the Report of the Task Force on Devolved Government. Each constituency population within a county was then divided by the county population and the result multiplied by the number of County Assembly Wards awarded to the county to arrive at the number of the County Assembly Wards awarded to a constituency.

Complaints were raised regarding the manner in which 80 new constituencies and 1450 County Assembly Wards had been created, their distribution, their names, boundaries and areas of allocation. The movement of sub-locations hitherto falling in one constituency to one or more of the proposed constituencies was also contested. Further grievances and controversies arose regarding the number of wards given to a particular constituency mainly on the basis of population, geographical, ethnic, clan, community, marginalized groups, minorities and other interests and the adequacy of the wards allocated. These complaints were contained in constitutional petitions and applications for judicial review filed in various High Court registries across the country, which were consolidated and heard by a bench of five judges of the Constitutional and Judicial Review Division of the Court.

The two main issues for determination were, firstly, the jurisdiction and the powers of the High Court to ‘review’ a decision on the delimitation of electoral unites under Article 89(11) of the Constitution and secondly, the constitutionality and legality of the criteria for delimitation applied by the IEBC. The question of which party should bear the costs of the litigation was also contested. The fulcrum of the litigation was therefore the interpretation of and application of the criteria for delimitation set out in Article 89 as read with section 27 of the Sixth Schedule to the Constitution and section 36 of the IEBC Act as read with the Fifth Schedule to the Act.