The Independent Electoral and Boundaries Commission is faced with a monumental and politically touchy task of reviewing constituency boundaries next month.
The number of constituencies is set at 290 and the IEBC cannot reduce the number but it can propose newer constituencies and mergers — sensitive issues. It also can change the number of wards from the current 1,450 — another sensitive issue.
Already the commission says it plans to embark on the process that must be completed by July 2021, one year to the General Election.
As it rolls up its sleeves for the real work, several challenges lie ahead, including a limited budget, strict timeless and the absence of a clear framework to guide the statutory exercise.
The process will mostly be guided by the 2019 Kenya National Population and Housing Census data.
The realignment of constituency the borders by law is also guided by geographical features and urban centres, community interest, historical, economic and cultural ties and means of communication.
Threatening to scuttle the statutory exercise is money; the IEBC has not received a shilling for the mandated the activity.
The Commission raised the alarm over lack of funding, meaning the process cannot start as planned without high-level intervention cough up funds and kick-start the process.
IEBC chairman Wafula Chebukati said in a statement the commission has developed a Boundaries Review Operations Plan (BROP), a roadmap for the exercise.
It also initiated staff capacity, procurement of the requisite tools and conducted a pilot boundaries review.
"However these processes have been hampered by inadequate budgetary allocation,” he said.
The law requires that boundaries of wards and constituencies are reviewed not less than eight years and not a day after the 12th year since the last review.
The eight-year period elapses this year, while the upper limit or 12th year means the country reviews its boundaries in 2024 after the general election.
Felix Odhiambo, Executive director of the Electoral Law and Governance Institute (ELGI) of Africa, says waiting for 2024 will not be practical as the country will have experienced at least a 20 per cent population increase.
The last delimitation was in March 2012, the second review since the Andrew Ligale-led boundary review commission.
“Boundaries delimitation worldwide follows population census ... It goes without saying boundaries limitation should follow most likely be in 2020 when the census is still fresh,” Odhiambo said.
The exercise also risks being caught up in high-voltage politics as a number of regions — especially Northeastern — still dispute their numbers in court.
“Another hurdle is the heightened electioneering period, the country is already in a campaign mood despite the fact that the 2022 elections are still two years away,” Odhiambo cautioned.
Again, the IEBC is yet to obtain the 2019 census data, weeks to the start of the national exercise.
“The Commission is set to commence the implementation of the boundaries review operations plan, subject to availability of budget and the 2019 census data which the Commission has requested from Kenya National Bureau of Statistics," Chebukati said.
His team will be confronted by vested interests from the political class since some constituencies will have failed the population threshold quarter and might be scrapped according to the law.
Another hurdle facing the Chebukati team is the absence of the legal framework to guide the exercise.
Odhiambo, an elections expert, the schedule in the IEBC Act of 2011 has elapsed and was only intended to guide the first delimitation of 2012.
Therefore, the IEBC alongside ELGI has proposed amendments to the IEBC Act to provide a legal framework to guide a second delimitation and other boundary reviews in the future. The proposal has not been passed.
For a constituency to maintain its status, the population must be greater or lesser than the quota by either 40 per cent for cities and sparsely populated areas or 30 per cent for other areas.
The quota is arrived at after dividing the total population by the 290 constituencies.
During the last review, the population threshold was set at 133,000 people, a figure likely to go up given the increase in population.
A major initial problem will be to decide on the future of the 26 constituencies that did not meet the population criteria when the last review was done in 2012. n principle, they could be merged or dissolved.
Some constituencies protected by the Ligale Commission included Lamu East, Lamu West, Mvita, Mwatate, Wundanyi, Voi, Bura, Galole, Isiolo South, Kilome, Laisamis, North Horr, Saku, Siakago (now Mbeere North), Ndaragwa, Tetu, Murkurweini, Othaya and Kangema. They are some of the constituencies that risk losing their status for not meeting the population quota.
Others were Mathioya, Samburu East, Marakwet East, Keiyo North, Mogotio, Vihiga and Budalang’i.
The Ligale Commission decided these constituencies could continue to exist — with the understanding they would be reviewed in the next boundary review.
Also obstructing a rational exercise are the emotions and political interests the review generates. No one wants to lose their seat and the community that voted for him or her.
According to Mvita MP Abdulswamad Nassir, the electoral body should not rely entirely on the population factor but must also consider other parameters like geography and cultural considerations.
“You cannot start comparing a place like Lamu to an area that has no cultural and historical ties. These are the things they need to consider, they can’t just wake up and say that it is just population,” Nassir said.
The lawmaker, whose Mvita constituency failed the quota in the first review, urged serious consideration, as it might face legal hurdles if not properly managed.
“If they follow the law and the Constitution to guide them, there shouldn’t be a problem. But if they fail to do so, then assure you that a lot of people will challenge that in court,” he said.
Odhiambo said, however, the IEBC must come out boldly and religiously implement Article 89 of the Constitution. He argued that protection only happens during the first review, in subsequent reviews, there is no constituency that will enjoy immunity.
Article 89 (5) states: "The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota, but the number of inhabitants of a constituency may be greater or lesser than the population quota in the manner specified in clause (6)."
