THE ‘FORGOTTEN’ PROVISION? A CASE FOR CONSTITUENCY DELIMITATION
The theatre of democracy
presents a complex play directed by the constitution. Nevertheless, the script
that directs the play is subject to interpretation. This article spotlights the
scene set by the enigma of electoral boundaries and the intricate dance of
constituency delimitation. This important process of delimitation has hit a
discordant note, as political interference has disrupted the dance patterns.
This paper seeks to unravel this conundrum by questioning whether the
legislative and political will overpower the power of the constitution.
Delimitation of electoral units is encapsulated under Article 89 of the Kenyan
Constitution. The aforementioned Article mandates the Independent Electoral and
Boundaries Commission (IEBC) to periodically review the names and boundaries of
constituencies, specifically after eight years and no more than twelve years
following the last review. This review process includes the periodic
reassessment of the numbers, names, and boundaries of wards.
Additionally, the Constitution
mandates that the number of inhabitants in each constituency should be as close
as possible to the population quota, allowing deviations of up to forty percent
for cities and sparsely populated areas, and thirty percent for other areas.
Reviews should consider factors such as geographical features, urban centres,
communities of interest, historical, economic, and cultural ties, and means of
communication. IEBC actively involves all stakeholders to ensure that
constituencies and wards are as equal in the population as possible. In line
with Article 89(12) of the Constitution, the population quota was calculated by
dividing the total national population by the respective number of
constituencies or wards. The Constitution allows for only 290 constituencies.
Section 27(4) of the
Sixth Schedule requires that the initial review of constituencies under the
current Constitution not eliminate any existing constituencies, maintaining the
number at 290, even if some do not meet the population quota. This preserved 27
constituencies in the 2013 elections, with adjustments planned for the next
review. Moreover, following a 24% population increase recorded in the 2019
census, the population quota increased, necessitating a review. The anticipated
delimitation process from April 2020 to April 2024 was delayed because of the
IEBC's incomplete constitution, despite court orders. This, along with
political interference, has led to more than 27 constituencies ceasing to
exist, raising concerns about the supremacy of the Constitution in Kenya.
It
is clear from the foregoing that the delimitation process is crucial,
particularly in fully realising the enjoyment of political rights encapsulated
in Article 38 of the Constitution, particularly the right to representation. In
the American case of Smith Dakota v North Carolina, the
court held that none of the provisions of the constitution should be segregated
to the detriment of another. Furthermore, the Indian Supreme Court has
explained that mandatory provisions include clauses that if not complied with,
beat the object of the provision. Based on the preceding information, it is
justified to conclude that, where a time-bound clause in a constitution
specifies that certain actions must be taken within a specific period, it can be
regarded as a mandatory provision. The time requirement is central to the
objectives of the statute.
Evidently, the
delimitation process is crucial, particularly in fully realizing the enjoyment
of political rights encapsulated in Article 38 of the Constitution. Through
periodic delimitation of constituencies, voter representation is distributed
equally and fairly to promote equality and universal suffrage. The process,
involving the participation of people, recognizes and protects marginalized
communities from further marginalization, enabling them to be represented
despite other factors, including geography. Furthermore, in the case of Republic
v Interim Independent Electoral and Boundaries Commission & another ex
parte Eliot Lidubwi Kihusa & 5 others, effective representation and
good governance were more compelling factors than absolute voter parity, such
as geography, during the delimitation process. Therefore, the language of the
Constitution is clear and mandatory in nature, dictating that the IEBC shall
conduct the process during the specified time. The IEBC Act, provides for the
procedure for delimitation of these electoral boundaries.
Essentially, the National
Assembly must represent every citizen according to their fully constituted and
recognized constituencies. However, changes in the population quota can affect
constitutional recognition. This crystallizes the necessity for periodic
constituency reviews to continuously enforce the right to representation.
Importantly, the case of R v IEBC highlights Kenya's historic
journey toward constitutional constituency delimitation. In the 1997 election,
constituency populations varied significantly, with Embakasi exceeding the
population quota by 381%, and Lamu reaching only 18%. This disparity, which gave
Lamu residents votes 19 times the weight of Embakasi votes, persisted in the
2007 elections, as detailed in the Kreigler report. The report identified
boundary manipulations favouring dominant parties and recommended legal limits
on constituency size variations, an Independent Boundary Review Commission, and
separating delimitation from voter registration. Despite the constitutional
mandate in Article 89 to prevent past injustices, political interference
hindered the IEBC, leading to a constitutional crisis and compromised
representation.
The IEBC, as an
independent commission, is meant to be free from political interference or
interference from any arm of the government. This relationship is governed by
Article 250 of the Constitution which provides for the composition,
appointment, and terms of the office of independent commissions, including the
IEBC. The commission ought to consist of at least three commissioners, and a
maximum of nine commissioners. That is, the three commissioners constitute a
commission. To select the commission, Article 250(2) provides that the
appointment is guided by a national legislature, followed by approval of the
names by the National Assembly, and thereafter, appointment by the President.
The Independent and
Boundaries Commission (Amendment) Act (2024) introduces a selection panel for
appointing commissioners. After selection, the names of the shortlisted
candidates are forwarded to the National Assembly, who will then approve and
forward the names to the president for approval. However, these provisions have
caused an uproar from the opposition, citing bias by the president and ruling
party. Consequently, the National Dialogue Committee (“NADCO”) was formulated
to address these grievances. Importantly, as of January 2024, the IEBC is still
not fully constituted, following the expiry of the term for the three
commissioners. Furthermore, three others had earlier resigned following the
events of the 2022 general election and one was ousted pursuant to Article 251
of the Constitution. This means that the process of delimitation of
constituencies could not occur, as the commission had no power to do so.
Consequently, NADCO
drafted a report on its findings, recommending that the selection panel should
include a member of the Law Society of Kenya, three from the Political Parties
Liaison Committee, two from the Parliamentary Service Commission, an accountant
from ICPAK, and some ICT personnel. Despite the Parliament's approval of
NADCO's recommendation for a diverse selection panel, political delays
persisted, leading to the IEBC (Amendment) Act being assented on 9 July 2024
but the commission remains incomplete. These unforeseen scenario questions
represent compliance and threaten constitutional integrity, risking a shift
towards autocracy. Raffael Fasel's definition of a constitutional crisis
highlights the need for decisive intervention to restore constitutional health,
urging citizens to reclaim their power to uphold democracy and resist emerging
dictatorship. The disregard for constitutional timelines underscores the
urgency to preserve the Republic's democratic principles.
In
conclusion, the provisions of Article 89 are mandatory in nature and
non-compliance with the time requirement provision invalidates the purpose of
the object. The framers of the constitution were particular in setting the time
limits of the process to justify and curb injustices such as this and more as
will be demonstrated in the following section. In light of this, the Kenya
Human Rights Commission urgently called for the Supreme Court to address this
Constitutional Crisis. The IEBC should apply for an advisory opinion from the
Supreme Court, as it affects them directly and also constitutes a state organ.
The advisory opinion should address (i) the consequences of violating the
constitutional provision and (ii) the steps the IEBC should take to mitigate
the violation of Kenyan political rights resulting from this constitutional
breach. Meanwhile, the IEBC secretariat should begin preliminary work on
delimitation and boundary review processes. This process is inevitable and
cannot be postponed despite the constitutional violation, as we await the
selection process to commence. This complex sequence of events, much like a
cryptic sonnet, weaves a tale that births more riddles than revelations, with
each unravelling thread leading deeper into the labyrinth of the uncertainty.
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