KATIBA CORNER

Numbers and Constitution: Small numbers matter, too

In some countries, the sensitivities have prevented censuses being held, or distorted the process.

In Summary

• It is generally reckoned essential for a country to know how many people it has and where they are for planning purposes.

• Another issue is elections, especially in a system like ours where most MPs are elected for particular geographic areas.

President Uhuru Kenyatta during the release of the 2019 Census results on Monday, November 4, 2019.
President Uhuru Kenyatta during the release of the 2019 Census results on Monday, November 4, 2019.
Image: PSCU

Last week’s Katiba Corner column told the story of what has seemed like a small victory for what are sometimes condescendingly called “small people”: How the European Investment Bank seemed to have decided not to give funding for a geothermal project because of the way the development company was violating the rights of villagers.

But, as the authors completed that article, threats of imminent eviction were reported.

Very early on the day after the article was published, police descended on the village, burning villagers’ tiny houses and chasing them away (to where?). The following day police returned, incinerating what was left - even clothes - and even using teargas. All this with the support of the deputy county commissioner. What sort of country is this that teargases the virtually destitute?

 

Even tiny numbers of people matter according to our Constitution.

BIG NUMBERS

The census has been a major, perhaps the major, news focus this week. Predictably people (well, politicians) in some areas are convinced – or perhaps not convinced but complain – that their people have been undercounted. No-one complains that “their” own numbers are too large.

It is generally reckoned essential for a country to know how many people it has and where they are for planning purposes. Provision of services like schools and health facilities and police, and funding for bodies in different places will obviously be simpler if the government knows how many people here are, including their ages, and where they are. Whether the government makes intelligent use of the information is a different matter of course.

Money and power (for politicians) are precisely what give rise to controversy. In some countries, the sensitivities have prevented censuses being held, or distorted the process. Nigeria’s 1962 census was re-run the following year because Northern politicians were unhappy about their population figures.

The 1973 census was cancelled because the figures were unbelievable. There was no new census till 1991, and another was held in 2006. On one view the figures ever since 1963 have followed the pattern of population distribution in the 1963 census – a highly unlikely scenario in real life, as our own figures show. Even birth rates vary between communities, while other factors like the pull of big urban areas and job opportunities, and the deterrent impacts of terrorist attacks are just as important.

IMPLICATIONS FOR ELECTIONS

 
 

Another issue is elections, especially in a system like ours where most MPs are elected for particular geographic areas.

Our newspapers speak of 27 (or 40 depending on the paper) being “scrapped”. This is misleading: The total number of National Assembly constituencies must remain at 290, plus the 47 county women representatives (they are in the Constitution). A constituency with few people might not be scrapped – possibly an area could be moved into it from a neighbouring constituency. However, probably some constituencies will have to cease to exist as distinct entities, particularly as no constituency may straddle county boundaries.

Whose problem is this? Mostly MPs? In reality, 60 per cent to 70 per cent of MPs do not get re-elected. Should we consider them as having some interest deserving protection in the continued existence of particular constituencies?

The Constitution – as many people have pointed out – requires that as far as possible constituencies have equal populations. With a national population of 47,564,296 complete equality would be 164,000 for each of the 290 constituencies. The Constitution allows a constituency to depart from this for two types of reasons.

First, so that a constituency has some sort of coherence, based on geography, history or economic factors, including communications networks. Secondly in urban areas, a constituency may have more people because communication is easier, while in a sparsely populated area it may be necessary to have fewer people. You will see that the focus is on the role of the MP in representing and communicating with the people.

Therefore, an urban area may have up to 49 per cent more people that the quota, and a rural area up to 40 per cent fewer (so up to 229,606 for urban and no less than 98,395 for rural). Incidentally, in the UK current estimates for constituency sizes are 162,000 for the largest (a city constituency) to 61,000 (in rural Wales). In Canada, the smallest constituency has just over 27,000 people, the largest four times as many.

Such discrepancies are common in countries with our type of electoral system - unlike those with large constituencies with several MPs or those where people vote for party lists, not individual MPs.

At present, our discrepancies are in fact greater than allowed, because the Constitution said that when the constituency boundaries were first reviewed (that was by the Ligale Commission followed by the first IEBC) no existing constituency should be abolished. So, for example, Lamu county still has two constituencies even though its total population is now 141,909 (or is it 143,920 – the Census publication gives both).

Lamu East has 22,258 people (13.6 per cent of the new constituency population quota, but not the smallest). If Lamu could logically be divided into two equal constituencies each would have 71,960 people, well below the constitutional minimum.

Incidentally, if we applied to same sort of reasoning to county women seats, we would find that the discrepancies are huge: Lamu’s woman member represents 143,920 people and Nairobi’s 4,397,073 (30 times as many).

By the way, the Constitution also says that the IEBC must work towards bringing the constituencies progressively towards the quota. Long-term at least, tiny constituencies, or a huge one like Embakasi with neatly a million people, cannot remain.

How much does this matter? Hardly, with our current system of government. What matters is our presidential elections – which can (assuming they are not rigged) accurately reflect the wishes of at least the majority of Kenyans since no-one’s vote counts for more than anyone else’s, and no-one can win without getting over half the votes.

With a President hardly caring about the Constitution and its limits on power, and with the National Assembly largely composed of what the Standard on Thursday aptly called the “President’s puppets”, how Parliament is composed matters little. Will they stand up for people like those of Lorropil? This week both houses failed to stand up for us all when they approved the government’s wish for a revised borrowing limit.

This week, too, the President’s veto power led to MPs being arm-twisted (they did not seem to fight back very hard) into amending the Finance Bill so that the cap on bank interest rates on lending was removed. Such a provision had no business in the Finance Act anyway – it amends the Banking Act and does not concern tax. This (and other provisions of the Bill) turn the Finance Bill into a sort of Statute Law (Miscellaneous Amendments) Bill, which tends to get less scrutiny than other Bills, and especially less public participation.

If we should change to a parliamentary system (what is happening to the BBI report?) the fairness of constituency sizes, including counties, will matter much more. This is because the prime minister would be decided on the basis of the seats won in the National Assembly.

FINANCE FOR COUNTIES

The other very political aspect of the census is the question of allocating money to counties: especially the “equitable share”. Of course, most MPs are less concerned about this – they indeed are mostly focussed on denying counties resources, both by supporting reductions in allocations to counties and by delaying approval of audited national accounts – meaning that the minimum 15 per cent share to go to counties is based on older (and smaller) total sums.

The Commission on Revenue Allocation’s first formula for dividing the equitable share between counties was that population counts for 45 per cent - the largest single item. The revised recommendations use population as a factor in various elements. The allocation for urban services, for example, depends on urban population, for agriculture on rural population and certain “other services” on total county population – still leaving population as the most important factor.

As another newspaper said on Wednesday, objections must be based on evidence not assertion.