New split paralyses Kenya constituency review

A split in the commission drawing up new constituency boundaries is threatening to delay a crucial announcement, 14 days before the team’s mandate ends.

Three of the nine commissioners have accused their chairman, Mr Andrew Ligale, of acting unilaterally and trying to influence the process of creating the 80 extra parliamentary seats will be created.

There had been unconfirmed reports that the Interim Independent Boundaries Review Commission would publish new constituency boundaries in the official Kenya Gazette on Friday but this did not happen.

However, Commissioner Murshid Abdalla discounted the reports of a quick gazettement as being among the “lots of rumours doing rounds”.

“We’re still working on it. Yes, there are dissenting voices, but work has to go on. You can’t get stuck on anything. Sometimes we get into stormy weather, but I can tell you that this debate has generated much more heat than light,” he told Saturday Nation.

But the three commissioners Mr Mwenda Makathimo, Mr Joseph Kaguthi and Dr John Nkinyangi said the proposed 80 new constituencies and their boundaries were casually arrived at without taking into consideration the factors as set out in the new Constitution.

“Other than the legal issues, I have professional problems with the way the exercise was done,” said Mr Makathimo, a surveyor.

Views have been divided among Members of Parliament since the commission’s report was leaked this week. Those from Eastern, Coast and Central Provinces have been up in arms, pointing out that the commission had ignored a political agreement on the formula for delimiting boundaries reached in Naivasha.

However, those from North Eastern, Western, Nyanza, Rift Valley and Nairobi have expressed support and want their colleagues to wait until after the new constituencies have been gazetted before making their complaints.

Those in support of the IIBRC accused their colleagues of attempting to whip up tribal emotions over an issue that was carried out constitutionally. They said the IIBRC used the Naivasha formula.

However, those against the proposals accused the IIBRC of failing to consult with the stakeholders and say that while the statistics are correct, the reality on the ground was different. They cite “historical marginalisation” as among the reasons that the IIBRC ought to have considered.

The now controversial proposal was said to have been tabled before commissioners for the first time last Friday before which time nothing was ever discussed over the many months and weeks the team has weighed different scenarios for distribution of constituencies. It was also reportedly discussed on Monday and Tuesday, when the three commissioners walked out in protest.

“Why was this proposal kept secret; hidden only to be revealed as some sort of weapon?” asked Dr Nkinyangi on Friday. The fallout effectively throws the commission’s bid to deliver on its brief off balance as Dr Nkinyangi formally wrote to the chairman to explain his position.

The trio has protested against among other things, the formula used, definition of cities and identification of the constituencies to be delineated. Saturday marks exactly two weeks to the expiry of the commission’s term.

When Mr Ligale presented a working document with the provincial quota to the team, he declined to change it even after the trio raised professional queries on the validity of setting up boundaries without visiting the ground to see what’s happening.

“When he brought the working document to us, we looked at it, haggled over it for three days and gave our input. In the end, the chairman said, he had not seen anything that’d make him change his mind; he was that arrogant. I found that obnoxious…there was no room for a different idea. He had already decided,” said Mr Makathimo. “We are asking for fairness and justice,” said Mr Kaguthi.

As they spoke to Saturday Nation on Friday, reports filtered in that the proposals from the IIBRC were already at the government printer awaiting their release as a special gazette notice. In his open letter to the chairman Dr Nkinyangi said that the new Constitution - Article 89, 7(a) - requires that the Commission shall consult all interested parties.

“It will be a breach of the Constitution and the trust bestowed on the Commission if there is gazettement of this or any other proposal before there is adequate consultations with stakeholders,” he stated.

The trio warned that should their colleagues go ahead to gazette the new laws then they’ll be sowing seeds of disharmony in the country. “It will be totally negligent,” said Mr Makathimo.

The commission which was scheduled to retreat to Mombasa to finalise its report for gazettement could not do so following the split, although the retreat has been rescheduled to Tuesday next week.

Their point of departure is the claim that Mr Ligale’s proposal is divergent from the methodology on distribution of constituencies stipulated in the new Constitution by using the province as the unit of analysis which is discriminatory.

The dissenting commissioners cite the case of Nairobi which, unlike other parts of the country, including other cities like Mombasa and Kisumu, is subjected to the maximum deviation of +40 per cent.

That way some constituencies in say Mombasa (Changamwe, Kisauni, Likoni and Mvita) and others in Kisumu which may have even higher population densities than some in Nairobi are treated as if they are rural constituencies, hence subjected to a deviation of ±30 per cent.

However, says Dr Nkinyangi, the statutory authority responsible for data collection in the country, including the census – the Kenya National Bureau of Statistics (KNBS) – has classified Nairobi, Mombasa and Kisumu as cities even in the last census report.

But, he says. Mr Ligale and some commissioners insisted on a legalistic definition of city as referring only to Nairobi (“the only City in the country”), and excluding Mombasa and Kisumu. Dr Nkinyangi says only a section of Commissioners and members of staff seemed to been consulted about the proposal to distribute constituencies along provincial lines.

“I can now find meaning in a memo that you sent to the Secretariat some weeks ago suggesting that they provide information to Commissioners only on a need to know basis,” wrote Dr Nkinyangi. Justice Minister Mutula Kilonzo told Saturday Nation that he stood by the directive he had given the commission earlier.

In August, the minister under whose docket the commission falls, had written to the Ligale led commission informing the team that what they will not have done by November 27 this year would be taken up by the new institution all together. “Upon the end of your mandate your work will be taken over by the Independent Electoral and Boundaries Commission, which will carry it forward,” the letter read in part.

Nonetheless, Mr Makathimo held that without ground visits and boundary delimitation, it will be imprudent for the commission to conclude its work. “You can’t sit on a desk and draw up boundaries. If you do that you might draw a boundary across a person’s land, such that half of it is in one constituency.”