The presidency and the Parliamentary Select Committee on the constitution review have over the past week further fertilised the culture of disregard for the rule of law and due process.
The two institutions established the Interim Independent Boundaries Commission (IIBRC), but are actively subverting the commission and the law that established it.
In Naivasha, the PSC arrogantly decided to delimit the number of new constituencies before the IIBRC does its work and returns its empirical findings to form the democratic and informed basis of decision making. Why is the PSC this impatient?
The public attention was then again recently captured by the Kenya Gazette notice of January 22, 2010, in which the President announced the Government’s intention to create 13 districts in various parts of the country.
Unfortunately, however, this intention does not enjoy basis in fact or law. It is likely that the president has been misadvised to author this mischief in exercise of powers he does not have. Prof Nyong’o in 1997, speaking at the National Convention Assembly said there could not be reforms without reform institutions and reformers.
HE WAS RIGHT BECAUSE THE REASON Kenya does not make progress on governance is that political leaders, once they join the corrupt state, lose their reform credentials and good will to respect institutions and the law. Law professor Okoth Ogendo once lamented that in Kenya there is a constitution without constitutionalism.
The law is very clear about how administrative units, including districts, ought to be created.
For the avoidance of doubt, the High Court has interpreted this issue in a loud unequivocal voice: Only last year, in September, Justice Daniel Musinga ruled: “Creation of any district has to be done in conformity with the Constitution of Kenya and the Districts and Provinces Act, 1992. Appropriate legislation must first be in place before any district is created. A district is an important administrative and political region to the extent that it is recognised by the Constitution and any variation of its boundaries must be done with total adherence to the relevant law...”
Section 41B of the Constitution empowers the IIBC — and not any other office or person — to revise or create boundaries for electoral and administrative units.
Parliament created this particular commission and gave it constitutional protection in order to end the era of gerrymandering electoral boundaries and using the carving out of electoral units as a political carrot.
It was a direct response to the recommendations of the independent review of the 2007 Elections Commission (Irec), better known as the Kriegler Commission, as well as the findings of the mediation agreement on inequality in the distribution of resources.
It is surprising that the presidency would attempt to take actions that clearly contradict the letter and spirit of the Constitution and the law, as laid down by Parliament and the superior courts of record.
Even before Justice Musinga’s ruling, Kangema MP John Michuki had gone to court and obtained a ruling that clarified matters on the legal status of districts created by roadside decrees. That notwithstanding, the number of districts in the country has continued to grow, although currently, 207 have no legal recognition. Only last year, President Kibaki publicly announced that there would be no new districts.
There is a method to the madness around new districts, however. It is curious that these units should be created at a time when the clamour for more constituencies has found expression in the recommendations of the Parliamentary Select Committee on the review.
Meanwhile, a private members Bill seeking to change all the current districts — legal or otherwise— into constituencies, is pending in Parliament.
KENYA HAS COME A LONG WAY TO become Kenya has come a long way to become a modern, liberal democracy. Its elected leaders are entrusted with responsibility over matters of national importance. Yet, there are still some issues on which the people must have the final say. Boundaries are one such.
There is a sound legal framework for undertaking the work of creating and revising electoral and administrative boundaries. After the boundaries commission completes its work and submits his report to Parliament, MPs and the President can make robust contributions to it, but definitely not before, and certainly not unilaterally.
After the 2007 General Election crisis, Kenyans thought the political leadership would adopt more responsible behaviour on matters of such great sensitivity. Civil society should continue with its motto of perpetual vigilance to ensure the politicians do not feather their nests and betray the people.