Validity of newly-created districts in doubt as Pandora’s box opened

Lawyers term new units illegal since they have not been ratified by Parliament.

Questions are now being raised over the legality of all the districts created by Kenya President Mwai Kibaki in the past three years.

Lawyers argue that almost all the newly-created districts are illegal since they have not been ratified by Parliament, a matter likely to spark serious debate in the country.

The lawyers, at the same time, accuse President Kibaki of usurping the role of the yet-to-be-established Interim Boundaries Review Commission, whose mandate is to establish, review and draw new administrative and constituency boundaries.

Parliament, through a select committee headed by Mandera Central MP Abdikadir Mohammed has began the process of setting up the boundaries review body.

The can of worms over the explosive matter was opened early this week by Prime Minister Raila Odinga, who, while criticising the President’s style of leadership, said he (Kibaki) did not have the constitutional powers to create districts.

The PM, during a recent trip to the Coast, said it was only Parliament that had the authority to create districts.

Said the PM: “President Kibaki is behaving in the wrong way. The districts are too many to an extent that district commissioners board matatus to attend functions.”

“According to the Constitution, the President does not have powers to create districts... why is the President usurping powers of Parliament? There should be the rule of law,” he added.
Similar concerns were also raised by retired President Daniel arap Moi.

“Where will the money come from to pay for all the new districts?” asked the former president at a recent gathering in Rift Valley Province.

On Wednesday, lawyers backed the PM’s assertion and declared that all the districts created without the approval of Parliament were illegal.

Totally outrageous

While the law does not bar the President from making public pronouncements on newly-created districts, they argued that Parliament must first approve and legitimise them.

Imenti Central MP Gitobu Imanyara told the Nation that a Bill on the new districts must be prepared by the government and be tabled before the House for MPs to ratify.

And if the Bill is approved, this would officially increase the number of the administrative units.

“Creating more than 100 new districts is totally outrageous... it is in fact illegal,” said Mr Imanyara in a telephone interview.

The MP says there was a law – the Districts and Provinces Act No 5 of 1992 – that governs the creation of districts in the country, spelling out their boundaries, beacons and other essential marks.

The law was assented to by former President Moi in 1992 and took effect in June the same year.

“It is an Act of Parliament that prescribe the districts and provinces in which Kenya is divided. What the President is doing is in contravention of this law,” said Mr Imanyara. And according to him, Kenya has only 46 legal districts.