• On the question whether the 270 number of constituencies could be varied, the same was answered in the affirmative.
• Regarding the attempt by the Bill to delimit and apportion constituencies, the Court declared the same as unconstitutional for
One of the challenges in the petition to the High Court in the BBI Judgment was the attempt by the BBI Bill to create, apportion and delimit new additional constituencies. The Bill sought to amend article 89 of the Constitution by increasing the total number of constituencies from the current 290 to 360. The Bill justified the creation of additional 70 constituencies on the need to ensure fair representation and entrench the equality of the vote in underrepresented electoral areas. The additional constituencies became a hot political issue given the uneven distribution of the new constituencies, which were principally allocated on the basis of population size. The petitioner’s gripes with the BBI Bill in this regard were mainly: the attempt to set the constituencies at 70; the purported predetermination of allocation of the new constituencies; attempted usurpation of the role of the IEBC of constituency delimitation; and delimitation and apportionment of the constituencies in the counties without public participation.
The Court framed two issues for determination being: whether it was lawful for the BBI Bill to set a specific number of constituencies (360); and whether it was lawful for the Bill to directly allocate and apportion the newly created constituencies without a delimitation exercise as provided for under article 89 of the Constitution. The Court noted that a constituency as a unit of representation is at the heart of the electoral process and that the establishment of the Constituency Development Fund determines the distribution of national economic resources. It also noted that the Kriegler Report had highlighted the gross disparities in voting populations and size of Kenyan constituencies and how these disparities were linked to the 2007 post-poll violence due to the skewed distribution of resources. It was recommended that there be optimal number of constituencies created on the basis of equality of votes in a people-driven process that engages with the public.
On the question whether the 270 number of constituencies could be varied, the same was answered in the affirmative with the Court stating that Kenyans were not dogmatic on the actual number of constituencies. Regarding the attempt by the Bill to delimit and apportion constituencies, the Court declared the same as unconstitutional for: purporting to set a criteria for delimiting the constituencies which is at variance with that provided in the Constitution; ignoring the public participation requirement in the delimitation and distribution of constituencies; imposing timelines for delimitation exercise contrary to the Constitution, among others.
The Court declared the attempt by the Bill to suspend the operation of article 89(4) of the Constitution from applying to the delimitation exercise contemplated in the Bill as to allow the same to be conducted within six months and before the 2022 General Election as unconstitutional, referring to the same as ‘amendment or suspension of operation of the Constitution by stealth.’ The utility of this judicial reasoning must be viewed within the context that it helps barricade attempts to sneak in constitutional changes that defeat provisions of the Constitution merely for political convenience without invoking the primary constituent power.
Notably, the BBI Bill appears to reduce the considerations for delimiting constituencies set out under Article 89 of the Constitution to a single issue-namely that of population quota, which in effect favours areas with high population while disadvantaging expansive and poor areas with low population. In this sense, it raises important equality issues, an issue which has been contentious even within the context of distribution of national revenue to various counties.
Muriungi is an advocate of the High Court of Kenya and teaches Law at the University of Nairobi