GHAI: County boundaries (for new counties): another crisis?

When I arrived in Nigeria in 1965 there were four regions (Northern, Eastern, Western and Mid-western and the last had only been added in 1963).

Around the time I left in 1976 there were 19 states. And since 1996 there have been 36 states and a Federal Capital Territory. Nigerians joked that eventually there would be one village, one state.

All the state creation exercises were carried out by military regimes (no need for public participation and parliamentary debates).

I was reminded of this by the petition from various MPs to the Raila/Ruto talks teams for the creation of 11 new counties.

Why 47?

The first official draft of a Constitution (CKRC, 2002) would have had the existing provinces, 70 districts and locations and village levels. The focus was on districts, but the idea was really of a strong local government system, based on districts, that could not be changed or interfered with by the national government as had happened in the past. At the province level there would be a council elected from the districts, which would have functions of coordinating the work of districts.

Gradually the model changed. At the Bomas conference it was felt that the provinces were too few and often their headquarters were far from people. So the Bomas draft proposed 14 regions instead. And the idea of constitutionalising location and village authorities was abandoned.

The hope was that the regions would be units within which people of different ethnic groups would work together constructively. Some communities, including the Teso and Mount Elgon people, raised objections during the Bomas process to their inclusion in certain regions.

The Committee of Experts (2009) started at this point (though with the original eight provinces as the intermediate level) but later abandoned the region idea because it was not clear what their role would be. It then felt that this meant there would be too many too weak entities (the then 74 - or even more - districts) and in its revised draft used the figure of 47 because that was the last legal number (presidents had been creating districts for political reasons without following the law). There was little time for the make-up of particular districts, or later counties, to be discussed.

What is the process for creating counties?

If the boundaries of a county are proposed to be changed, a special commission would have to be set up by Parliament (Article 188). And whatever it recommended would go to Parliament and adoption would require a resolution passed by two thirds of each house. Clearly the commission would have to carry out public participation.

My initial reaction was that this would not apply to creating any wholly new county. This would surely require an amendment of the constitution, because the First Schedule lists the counties by name. If so the usual amendment route would apply two thirds of each house of Parliament on two occasions in each house.

Some have said it would also need a referendum because it affects the structure of devolution (Article 255(1(i)). Is the number of counties an aspect of the structure of devolution, or would that mean something more fundamental like the introduction of a new level of devolved government?

To say Article 188 does not apply is unsatisfying. How odd to have a commission for a mere boundary and not to create a new county or more! Almost certainly a commission would involve more consultation than the 90 days delay for public participation required for a constitutional amendment.

Or would the referendum substitute for this? Referendums are unpredictable affairs. There is a tendency for voters to be influenced as much by other factors (like their general approval or disapproval of whoever is behind the proposal) as by the issue theoretically at stake– as we saw in 2005.

Or does the Constitution require both the Article 188 commission and resolution and a constitutional amendment with referendum? Some puzzles for the courts!

Other implications

It’s not just a question of changing boundaries. The scheme of the Constitution includes one woman rep from each county in the National Assembly - so each new county would have to have a woman rep, because otherwise the people in the new counties would be under-represented. Similarly 11 new Senatorial posts would be needed.

Would it affect the gender issue? After the 2022 election we had 267 male MPs and 82 women (47 women reps, six from party lists and 29 constituency MPs) - 23.43  per cent women.

If, after a county creation exercise, the same numbers of constituency MPs and list MPS were women we would have a total of 370 members, of whom 58 were women reps, making a total of 92 women – or 24.9 per cent. Still well short of one third. In fact the rule is “not more than two-thirds of either gender. Two thirds of 370 is 246.6 – which means that there must be no more than 246 men. But with 92 women there would be 278 men – way too many.

It is assumed that a constituency cannot straddle a county boundary. Therefore, county boundary changes would have to be accompanied by changing of constituency boundaries, unless the exercise was done by moving whole constituencies, which is unlikely (even without any creation of additional constituencies – for which there are also strong voices).

This would also affect the timing: the IEBC would have to fix new constituency boundaries once the new counties were created. Last week I suggested that failure to fix boundaries by early 2024 is not a disaster – but that the IEBC might have difficulty concluding its work on boundaries a year before the 2027 election. Having to wait for new counties first would make this even harder.

Does it make sense?

Part of the push for new counties seems to come from minority communities’ sense that they have not reaped the supposed benefits of devolution (Article 174), like promoting minority interests and equitable sharing of resources.

It indicates that “fostering national unity by recognising diversity” is also not being achieved. This is sad. Of course, there is some possibility that the interests of individual politicians are also a factor, for which community resentment is stirred up.

One worry must be that this is the beginning of a process of fragmentation. The CoE made a decision to have 47 counties. Their justification – the legally valid existing districts – was a practical solution to what they clearly thought of as a problem: having too many units.

Counties have some major powers – such as health. If they are too small they will not be able to carry out those functions. Or raise their own revenue. The smaller the counties the less power they have – individually and collectively (though retaining the pompous elements like “governors” and deputies and mansions). Creating more counties may actually weaken devolution. There are plenty of politicians at the national level for whom this would be a desirable outcome.

Multi-ethnic counties need to be brought to comply with the constitution and the law about how they treat their minorities. In the long run this would be more positive an approach than creating more, mono-ethnic counties.

The Auditor General’s Working Group on Devolution which reported in 2016, suggested that “Changing the number and size of counties will lead to deep politicisation of devolution and polarise the country along various lines. It is recommended that efforts be spent in ensuring that the current county governments are achieving their full potential, and that they are put into optimal use.” There is some reason to fear that the former is what is happening.

There is a tendency – not just in Kenya – to resort to changing the constitution to solve problems that could be solved by using the constitution as it is (instead of evading the undesired aspects).

Of course, the constitution is not perfect. And some constitutions definitely need changing. But if changing the constitution becomes a solution to problems it means that making the effort to make the constitution work as it is will become less valued.