Will sanity prevail?

The Constitution provides in article 89 that there shall be 290 constituencies in Kenya (89.1). It provides in article 89.5 that "the boundaries of each constituency shall be such that the inhabitants of the constituency is, as nearly as possible, equal to the population quota, but the number of inhabitants of a constituency may be greater or lesser than the population quota in the manner specified in clause (6) to take account of -
(a) geographical features and urban centres;
(b) community of interest, historical, economic and cultural ties; and
(c) means of communication."

Article 89.6 provides that "the number of inhabitants of a constituency or ward may be greater or lesser than the population quota by a margin of not more than -
(a) forty per cent for cities and sparsely populated areas; and
(b) thirty percent for the other areas."

Article 89.12 provides that "for the purposes of this article, "population quota" means the number obtained by dividing the number of inhabitants of Kenya by the number of constituencies or wards, as applicable, into which Kenya is divided under this Article."

Section 27.1 of the Sixth Schedule provides that "the Boundaries Commission established under the former Constitution shall continue to operate as constituted under that Constitution and in terms of sections 41B and 41C but -
(a) it shall not determine the boundaries of the Counties under this Constitution;
(b) it shall determine the boundaries of constituencies and wards using criteria mentioned in this constitution; and
(c) members of the Commission shall be subject to Chapter Seven of this Constitution".

Section 27.4 also provides that "the Boundaries Commission shall ensure that the first review of constituencies undertaken in terms of this Constitution shall not result in the loss of a constituency existing on the effective date."

Section of 41B (7) of the former Constitution provides that "in the exercise of its functions under this Constitution, the Commission shall not be subject to the direction or control of an person or authority." Section 42C (a) provides that "the Commission shall be responsible for -
(a) making recommendations to Parliament on the delimitation of constituencies and local authority electoral units and the optimal number of constituencies on the basis of equity of votes taking into account -
(i) density of population, and in particular the need to ensure adequate representation of sparsely populated areas;
(ii) population trends;
(iii) means of communication;
(iv) geographical features; and
(v) community interest.

The Constitution is this clear on several issues. It is clear on how many constituencies Kenya shall be divided into (290). It is very clear on which body shall be responsible for the delimitation of constituency boundaries (the IIBRC or the IEBRC, whichever is in existence). It is very clear on the procedure to be followed and the criteria to be employed. It is also clear on the process of reviewing the recommendations made by the Boundaries Commission. Article 89.10 and 89.11 are clear that any person can apply to the High Court for a review of the decision of the IIBRC and that such appeal can only be filed within thirty days after the decision of the IIBRC has been published in the Kenya Gazette.

The IIBRC was meant to serve a two-year term, ending on the 27th of November, 2010 (three months after the effective date, i.e., the Promulgation of the Constitution) or when the Independent electoral and Boundaries Commission is formed, whichever is later. My interpretation is that until the IEBRC is formed, the IIBRC shall continue to exist and carry out its functions in accordance with the terms of both the current Constitution and the former Constitution. Therefore, the statements to the effect that Mr. Ligale and other Commissioners shall cease to hold office on 27th November 2010, in the absence of the formation of the new boundaries Commission, are way off the mark.

The Constitution, in the Sixth Schedule, also provides for 'protected' constituencies, i.e., in its first delimitation of boundaries of under the Constitution, no constituency shall be lost because it does not meet the criteria provided for under the Constitution. Therefore, constituencies that fall outside the population quota or the variations provided for, shall not be lost until the second delimitation of boundaries, which shall be done between 2018 and 2020. Also, if general elections are held in the next twelve months, the new constituencies created by the IIBRC shall not be contested as per the provisions of article 89.2 and 89.4.

Gacheche, J. was wrong to entertain a petition that prevented the IIBRC from publishing its recommendations as per the provisions of article 89.10 and 89.11 which state that a review of the decision of the decision of the IIBRC can only be made after it has published its recommendations in the Kenya Gazette. It is difficult to see what rationale she employed to allow the application for the injunction to succeed. the petitioner did not wait for the Commission to publish its report and therefore, there is no way that he could be prejudiced by the recommendations of the Commission. If he had valid grounds for objecting to how the Commission had discharged its mandate, he should have waited for it to publish its report before applying to the High Court for a review of the decision. However, given the principle of separation of powers, on which the Constitution is based, the MPs calling for a censure motion against the Judge are wrong. The correct procedure is to petition the Chief Justice, who would then recommend to the president the appointment of a Tribunal to investigate the alleged judicial misconduct of Lady Justice Gacheche. As it is, their censure motion, eve if it succeeds, will have no effect on the Judge.

Finally, the list the IIBRC published in Friday's newspapers is raising concerns that the Commission did not eve apply the formula provided in article 89. I am assured that in statistical analysis, different values are assigned to the various factors that will be taken into account in calculating something as crucial as as the population quota. I expect that the Commission would also have published the rationale for its decision and therefore, those saying that the Commission betrayed its mandate have jumped the gun in castigating it. Until we see all the data they relied on in arriving at their decision, regardless of the three Commissioner's public statements, we cannot be sure that the Commission was wrong in what it did. Only after it publishes in the Kenya Gazette can we then judge its actions. The political posturing that is taking place betrays the fact that our politicians still look at electoral boundaries as ethnic strongholds. They cannot fathom the idea that one 'group' will lord it over 'theirs' and it is imperative that sanity prevails, otherwise the 2012 elections may be even more bloodier than the 2007 ones.