Last week the Star carried a front page headline: ‘Big crisis looms over boundary review Process.’
What boundaries?
We are talking about boundaries of electoral districts. We have three types: regular constituencies, wards in counties and counties themselves (for which Senators and women reps are elected). There is of course one other – the whole country, which is the electoral district for the election of the President, but there is no provision for changing that boundary!
The focus is really on the boundaries of the 290 regular House of Assembly constituencies. The Constitution does say the Independent Electoral and Boundaries Commission must review wards number, names and boundaries “periodically”.
But National Assembly constituency boundaries and names must be reviewed “at intervals of not less than eight years, and not more than twelve years”.
The Interim Independent Boundaries Review Commission of Kenya (Ligale Commission, 2009-10) did produce a report on boundary changes, but their work had to be completed by the IEBC in time for the 2013 General Election. It used 2009 Census data and reported early in 2012. This time, the final report by the IEBC had to be not earlier than early 2020, but not later than early 2024.
Why do boundaries matter?
The Constitution fixes the number of NA constituencies at 290 – a figure chosen by that Parliamentary Select Committee in 2010.
Boundaries affect both the ethnic and the party make-up of Parliament. Ideally all constituencies should have about the same number of people so that people are equally represented in Parliament. But it is not a matter of just dividing the country into blocks of equal population.
The aim is that each constituency should have some coherence – as a town, or part of a town, or community (so that the MPs can have some understanding of the make-up of the population they represent, and put forward their interests and views). Densely or sparsely populated constituencies may, under our constitution, have larger or smaller populations respectively.
In Kenya these days the main concern seems to be about money – especially through the CDF.
Too many people seem to think that the role of MP is to distribute money (for scholarships, building classrooms etc.). MPs tend to think so, too. At present the CDF is unconstitutional, anyway.
Populations change. People may move, birth rates may vary. Every 10 years it is customary, in Kenya as in many other countries, to hold a census. Everyone is supposed to be counted, providing crucial information for boundary reviews. The expectation is that generally minor changes of boundary will be needed, but occasionally two constituencies might be merged, or one split.
There is no magic population size. The average number of voters per Indian MP is about 1,500,000 (which means far more population). In the US the average population per Congress district is 760,000. In Kenya the average on the basis of the 2019 census is 164,000 people per constituency. Though the other two countries are federal with many government functions exercised by states, in Kenya also we have counties and 1450 ward representatives at that level.
And every Kenyan is represented by a women rep.
Who should decide?
The CDF issue makes it clear that MPs have too much of a personal interest to fix constituencies. And parties have an interest in maximising the impact of their supporters’ votes.
This can be done by trying to ensure that one’s supporters are a majority in as many constituencies as possible, but not too large a majority – because a boundary tweak might shift the extra to another constituency to form a majority there.
Opponents’ supporters may be corralled into few constituencies or spread thinly so they will have less impact. (In Kenya, of course, majority forming is also done by persuading people to register in places where they are not resident, and then bussing them to vote there).
Interestingly, the US have a rigid rule about size of population. But there is much gerrymandering of boundaries to distribute voters in ways that benefit the ruling group (redistricting is done by state legislatures). The result is some very strange shaped constituencies.
Should election management bodies (EMBs – like our IEBC) also deal with boundaries? A leading source says, “There are operational and cost-effectiveness advantages of an EMB taking responsibility for … boundary delimitation. Boundary delimitation is, however, a politically divisive issue, and leaves an EMB open to attack by those who perceive the results as not serving their interests. Some electoral analysts therefore argue that boundary delimitation is best handled by a body other than an EMB.”
The Committee of Experts did consider this issue but decided to keep the tradition of the EMB doing both jobs. In the Kenyan context it seems that the running of elections is not less politically charged than fixing boundaries.
The current problem
At present the IEBC has no commissioners – and recruitment .of a new team is a topic in the Raila/Ruto talks.
There is still a Commission (it is a legal body existing independently of its commissioners).
However, courts have held that commissioners are required to make policy decisions, and the major decisions about boundaries would surely require their involvement, though some routine steps could be done by staff without involvement of commissioners.
Fairly obviously the 2024 deadline cannot be met. The Constitution does not say what happens then. In fact it rarely says what happens if deadlines are not met. Nor does the IEBC’s Act. The answer cannot be that the review cannot happen – that would be ridiculous. On that basis to say there is a crisis is an overstatement.
The process of review however takes time. The IEBC first indicated it was working on the review in 2020 (even suggesting they could do it for the 2022 election). But then Covid-19 happened.
But the whole process is inevitably time consuming. This is particularly so because of the requirement for public participation. The IEBC has never done this before from scratch. It is not entirely clear how long the process will take, because of the interrupted way the previous review was conducted.
And when the IEBC had reviewed and amended the earlier commission’s work, its own proposals went to the High Court. That produced a huge judgment which amended some proposals. And a few of these went to the Court of Appeal - which gave its judgment after the 2013 election.
There must be some concern that the IEBC will not be able to meet another deadline – the revised boundaries cannot be used if not completed at least one year before the 2027 elections.
So the revisions would not come into effect until 2032 – by which time the 2029 census results should be available – and preferably used.
Does it matter?
There will undoubtedly be a lot of argument and litigation – driven particularly by the CDF issue. It is not just former Central province. Imagine how Lamu voters will feel if their two constituencies are merged into one. The total Lamu population in 2019 was 143,000. Around 20 other constituencies face such mergers. These were protected in the first boundary exercise.
Will it seriously affect democracy, though? The first issue is that the election of MPs does not affect who is President. Second is the fact that Kenya’s electoral system does not come anywhere near one person one vote one value.
Even constituencies that are not densely or sparsely populated can be 30 per cent more or less populous than the national quota. Then the women reps seriously undermine equality of the vote (one person in some counties having far more influence on the result than in other counties).
If you add other factors such as that Parliament does not seem to care very much about being an independent arm of government, one must wonder whether equality of vote really means much (unless it involves money and kudos for MPs).
Indeed many MPs care much more about being on or close to the winning side - as we have seen since the 2022 election - than why they were elected.