- The constitutional framers foresaw the possibility of political shenanigans in distributing representation on the basis of population only and crafted Article 89
- This took into account a number of parameters, including land size, population, means of communication and historical injustices, ensuring equity and equality
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There is currently a plethora of cases challenging the constitutionality or otherwise of the BBI in the High Court. Therefore, the assertion by the IEBC that the BBI steering committee had no mandate to distribute constituencies was not surprising.
What was however thought provoking was a rejoinder issued by Paul Mwangi, a former joint secretary of the BBI committee, who said, “On the 70 new constituencies proposed in the BBI, it’s that the people have proposed to take away a function from the IEBC”.
How the provisions of a proposed Bill take precedence over the Constitution beggars belief. This attitude also sheds light on the ill intentions of the BBI as a scheme to achieve a predetermined objective and not a popular initiative.
The concept of popular initiative as a means of amending the Constitution was borrowed from developed democracies such as America and Canada, where in almost every election there is always an issue on the ballot to be determined through a referendum especially in state or provincial governments.
However popular initiative proposals are usually single in nature or carry multiple issues but citizens are given a choice on each item that requires determination unlike the BBI, which intends to alter nearly every chapter of the constitution on a single NO or YES vote.
Popular initiatives are also driven by the citizenry. Usually a petition is lodged by the public with the government which, when it attains a certain threshold, initiates a proposition that will be voted on. However the BBI was driven by the state. It draws its mandate from a Gazette notice by the Executive. It was also passed by many county assemblies without the requisite public participation, debate and scrutiny that a constitutional amendment demands.
The BBI proposals on sharing revenue purely based on population, capping of average income to be received by counties, basing gender top up seats on votes cast and allocating and distributing constituencies on population only have a sinister motive of getting rid of a Constitution that is equitable and replacing with one that will centralise resources to a few urban areas with a declining utility.
But perhaps it’s imperative to shed light on how BBI intends to perpetuate inequity and inequality through the removal of Article 89. Kiambu presently has 12 constituencies. It will receive an additional six as per the BBI constituency distribution list and another seven as per the proposal of sharing the gender top up positions. With 25 MPs and a population of 2,417,000, Kiambu will have a representation ratio of 86,321.
Nairobi with 17 MPs will receive an extra 13MPs as per the BBI proposal and an extra 10 in terms of gender top up. With 43 MPs and a population of 4,397,073 Nairobi will have a representation ratio of 102,257.
Wajir, currently with six constituencies, which is 22 times the size of Kiambu and 80 times the size of Nairobi, with a population of 781,265, will receive no extra MP as per the BBI constituency distribution list. It’s also unlikely to receive a seat as per the top up rule espoused by the BBI that shares the seats according to votes cast, which has a linear relationship with population. It will thus have a representation ratio of 130,210. Wajir South constituency, which is nine times the size of Kiambu and 31 times the size of Nairobi, has a representation ratio of 116,814.
The constitutional framers foresaw the possibility of political shenanigans in distributing representation on the basis of population only and crafted Article 89 that took into account a number of parameters, including land size, population, means of communication and historical injustices, ensuring equity and equality.
The BBI proposals on sharing revenue purely based on population, capping of average income to be received by counties, basing gender top up seats on votes cast and allocating and distributing constituencies on population only have a sinister motive of getting rid of a Constitution that is equitable and replacing with one that will centralise resources to a few urban areas with a declining utility.
With a country whose economy is in the doldrums and declining productivity, such a move is economically counterproductive. As a nation we should think of how we could transform Wajir, Marsabit, Garissa, Mandera, Isiolo and Turkana to the level of Nairobi and Kiambu.
Reincarnation of the 1965 sessional paper that subjected 80 per cent of the nation to perpetual subjugation through the BBI Bill will be a constitutional coup and an imprudent economic decision.
Secretary general, Eldas Professionals Association