Since the commencement of the 13th Kenyan Parliament, it has been raining constitutional amendment bills. The hangover from the Building Bridges Initiative (BBI) constitutional review (mis)adventure seems not to have dissipated. Parliamentarians, both rookies (trying to make their dramatic legislative debuts) and seasoned (trying to flex to rookies) have swiftly suggested amendments. Not in censure – because this is part of their mandate – the suggestions, whether valid or not, seem not well thought out.
Shortly after being sworn in, Samuel Mule (Matungulu, Azimio) and Gichimu Githinji (Gichugu, Kenya Kwanza) lodged a parliamentary initiative intending constitutional entrenchment of several funds, key being Kenya’s legislators’ goose that lays the golden egg – the National Government Constituency Development Fund (NGCDF), whose existence was ended by the Supreme Court a day before the 2022 general election.
The two MPs’ priorities seemed strange considering the real-time challenges facing ordinary Kenyans – high cost of living, drought and famine, which Kenyans expected undivided attention towards, as promised during the campaigns. That the two were from the two adversarial leading coalitions said a lot – if for nothing else, bipartisanship would be pursued for the sake of the return of the NGCDF.
Thereafter, Salah Yakub (Fafi, Kenya Kwanza) announced his intention to initiate review of limited presidential terms. In a fresh attempt to reintroduce the positions of prime minister, two deputy ministers, and the leader of opposition, Victor Okul, an ordinary citizen, recently petitioned Parliament, urging it to resuscitate this part of the BBI blueprint.
This article’s crosshairs are however fixated on the proposal by Marwa Kitayama (Kuria East, Kenya Kwanza) who sponsored yet another bill that seeks to add the number of counties from 47 to 52. In his bill, the Independence Elections and Boundaries Commission (IEBC) should hive off new counties from Migori, Kitui, Busia, West Pokot, Baringo, Busia and Trans Nzoia counties. The anticipated new counties shall be Kuria (sponsor represents Kuria East), Mwingi, Mt Elgon, Teso and East Pokot.
Amongst other things, the MP seeks to redress “historical ethnic tensions that result from divisive elections.” Kitayama seemingly believes that ethnic enclaves are the solution to controversial elections. As if elections are not competitions pitting different interests, Kitayama suggests that electoral justice can only be achieved through homogenous polities, engineered through affirmative tribal gerrymandering for minorities. Assuming that is the case, Kitayama’s bill is therefore narrow in territorial and material scopes of minorities in Kenya and their interests, because it doesn’t cater for all minorities in the manner one would imagine he intended to.
Be that as it may, alongside the multiple incessant questions about Kenya’s counties – their origin, number (more or less?), and relevance (impact), notably, this is not the first time such an effort has been made. In January 2014, former Mwingi Central MP Joe Mutambo initiated a move to reduce counties from 47 to ten 10. Mutambo argued that 47 counties were too many and “not viable” because of cost.
Granted, counties mean different things to different people. They are theatres of social, democratic, cultural, and economic advancement, which, depending on historical and residential landscapes, is realised through diverse routes that define access to the state. Invariably, Some (wealthy, those from the ‘Big 5’) deem them as expensive intruders, while others (those to whom counties liberate and magnify their identities) consider them a prudent investment. During BBI discussions, the creation of 14 regional governments, canopies to counties, was proposed. Like the Committee of Experts’ (CoE) proposal in 2009, this was shelved because of cost.
The proposals and debates are therefore expected and welcomed, considering that the current 47 counties were placeholders. Remarkably, they have received wide acceptance and ownership.
However contingently and an aura beyond tribe, counties have engendered a new sense of political identity. The primary issue is – if placeholders, why them and where did they come from?
In its final report, the CoE explained that “For the units of county governments, the districts enacted in 1992 by The Districts and Provinces Act were adopted as proposed counties. The regional units in the Harmonized Draft Constitution had been conceived to be large units better posed to apply checks and balances to the exercise of power at the national level. Without the regional level [which Kenyans detested], it was necessary to establish units of devolved government in the [Revised Harmonised Draft Constitution] RHDC that could be effective for this purpose, while at the same time, with capacity… The object of including the units of devolution in this Draft [Proposed Constitution of Kenya, 2010] was to provide a starting point (emphasis mine) for a new dispensation of devolved units…”
The CoE’s 18 month statutory mandate engendered the dilemma of anchoring devolution without territorial units, because it did not provide ample time and resources for forensic delimitation of county boundaries. To address this paradox, the CoE invoked existing administrative boundaries. Provincial boundaries were out because of Kenyans’ displeasure with provincial administration, and a three-tiered system with regional governments hewn out of the then provinces, and the seventy nine districts proposed in the Bomas Draft, as counties.
In the preferred two tier system, the regions/provinces would be too few (easy to manipulate) and huge (inefficient service delivery) while the seventy nine would be many, small hence ineffective.
The other alternative, the boundaries of existing districts, presented a viable route. Of the existing 256, only 46, created through the Districts and Provinces Act of 1992, were legal. Two hundred and ten 210 created thereafter by Presidents Daniel arap Moi (30) and Mwai Kibaki (180) were illegal according to a High Court decision in 2009. The CoE therefore proposed the compromise of using the 46, and Nairobi. As a blessing in disguise, the number and sizes fitted well.
Noting this theoretical foundation, the CoE provided ventilation thus – “But the boundaries of the devolved units could then be altered in accordance with the procedure provided (emphasis mine). It qualified this with the caution – “It is to be noted that, whereas electoral boundaries would be reviewed and could change periodically, those for the counties as units of devolution would not change regularly.”
The procedure is constitutionally provided for under Article 188, which permits Parliament to constitute an independent commission for the purpose of reviewing county boundaries. The National Assembly and Senate, through supermajorities (2/3) in each, decide the fate of the commission’s recommendations deciphered through data and information acquired via public participation (a constitutional requirement) and other means. The proposals should be guided by – population density and demographic trends, physical and human infrastructure, historical and cultural ties, the cost of administration, the views of the communities affected, the objects of devolution of government, and geographical features.
It is this route that MP Kitayama and his ilk are urged to use. Kitayama’s current route not only puts the cart before horse, but also avails numerous grounds for judicial challenges – is there a constitutionally provided way of altering boundaries? If yes, why short circuit it? How will other minorities and interests be accommodated? Why involve the entire nation in a discussion and referendum directly impacting a select few? What of those who validly want less counties? What is the justification of the proposals? The answer to all may seem obvious – “the people shall decide through the plebiscite”.
All the same, the route selfishly and conveniently side-steps Article 188. It is inefficient and limits the opportunity and scope for a comprehensive, scientific, participatory, accountable and all inclusive discussion about county boundaries. Route 188 allows Parliament to craft a well manicured process, whose outcome – whether status quo; add, reduce; multiply; or divide, shall command national confidence and legitimacy.
In a broader sense, and whether from individual and communal scopes, boundaries should be seen as instruments that facilitate the identity and validity of diverse stakes entitled to inclusion and access, other than instruments of economic exclusion and political exploitation.