By NZAU MUSAU
WAS it a case of gerrymandering on the part of Interim Independent Boundaries Review Commission, a case of a warped law, a case of misunderstanding or a case of greed on the part of our leaders?
These are big question which are emerging since last Tuesday when the commission published the list of 290 constituencies including 80 new ones as provided for in the new constitution.
On the day the list was issued and slotted for gazettement, a businessman moved to court and a section of MPs rose up in protest. Before that, a section of commissioners had walked on the final deliberations citing “surprise” decisions from the chairman Andrew Ligale.
Given the history of boundary review exercises in this country (Read separate story) and the new constitution notwithstanding, many Kenyans expected gerrymandering in the process of drawing up new boundaries hence the initial uproar.
The choice of the chair- Andrew Ligale, himself a former Vihiga MP affiliated to the ODM party did not help matters with the same parliament which endorsed him now crying foul that the new boundaries were calculated in favor of his former party.
Ligale would easily pass for an ODM hireling if the provisions of the original IIBRC mandate and those of the new constitution were not considered. His work would equally be invalidated if there were serious discrepancies in the manner of allotting the new constituencies.
A careful reading of Section 89 of the new constitution reveals that population is set out as the main determinant of the new boundaries but with deviations to cater for geographical features, urban centres, community of interest, historical, economic and cultural ties and means of communication.
The latter aspects must however fit in to the population aspect with deviations of margins greater or lesser by not more than 40 per cent for cities and sparsely populated areas and 30 per cent for other areas.
This would probably explain why an expansive area like Marsabit County which comprises of Moyale, North Horr, Saku and Laisami constituencies with a population total of 291,166 and total area of 70,961 Sq KMs did not get an additional constituency.
So expansive is the area that North Horr alone, which has 75,196 people, is larger than the area of Nyanza, Western, Central and Nairobi provinces combined yet it was not split up.
The constituency is 39,248 square kilometers. The whole of Nyanza is 12,612 Sq KMs, Western 8,309 Sq KMs, Central 13,163 Sq KMs and Nairobi 695 Sq KMs respectively. But it did not get an additional constituency because the law betrayed it.
According to the law, the county which is a sparsely populated area when you consider its population and the area size is subjected to the 40 per cent less the population quota which is 53,255 less the standard 133,138 population quota.
This means that an ideal constituency in Marsabit County should have 79,883 people. When u divide the 291,166 population of this county by 79,883, the number of constituencies you get is 3.6 which rounds up to four constituencies.
“You would have expected North Horr to receive a special consideration and as long as there is no explanation coming from the commission on this and other areas, there will be speculation,” assistant minister Cecily Mbarire told Siasa.
North Horr MP Chachu Ganya however cries foul but falls short of admitting the law sold the people of North Horr out when he said it (law) seems to give emphasis to the population in place of other aspects as geography and the rest.
“It talks of population. However, it also says the other factors have to be considered. What is painful to us is that this team seems to have neglected these other consideration to deliberately marginalize us,” Chachu mourned and added:
“We are being punished for lack of population by the same government that has refused to develop our area. The high mortality and poverty rates in my area should tell you why we have no population. How do you expect this population to grow?”
He compares the case of Marsabit with Vihiga County comprising of Emuhaya, Sabatia, Vihiga and Hamisi constituencies. The county has a total population of 554,622 and area size of 530 Sq KMs and it got an additional constituency in the name of Luanda.
If the same yardstick is used and the population divided by the population quota of 133,138, it comes to 4.1 constituencies and therefore no additional constituency was required.
But if you subject Vihiga County to the deviation of 30 per cent less the population quota, it comes to 5.9 constituencies which rounds up to 6 constituencies and therefore it required 2 additional ones. If you put the deviation of 30 per cent more, it comes to 3.2 which rounds to three constituencies.
Whatever the case, you cannot explain how Vihiga got an additional constituency because whichever deviation is used; 30 percent plus, 30 per cent less and the standard population quota, the county would have gotten 3, 6 and 4 respectively.
Another county with similar issue like Marsabit is Tana River County comprising of Garsen, Galole and Bura whose total area size of 38,436 nears that of North Horr constituency. The county has a population of 240,075 people and a density of 6, 2 points higher than Marsabits.
Again, when subjected to the 40 per cent less than the population quota which is their due owing to sparse population, the area gets only the three constituencies and might only need redrawing of the boundaries so that each constituency has about 79,000 people.
In contrast, Samburu County with a population of 223,947 and an area size of 21,022 Sq KMs – both aspects lesser than Tana Rivers, got an additional constituency of Samburu North. The reason for this is because going by this calculation, the region which had two constituencies before deserved one more.
In almost all the counties Siasa sampled, the population quota of 133,138 was used and the number of additional constituencies is justified but the problem is that this formula adds up to 284 constituencies and not 290.
How the commission distributed the remaining 6 constituencies remains a mystery and our attempts to get the commission to explain this did not bear fruit. Perhaps this explains the unique case of Vihiga and Migori Counties.
In Migori’s case, the county has a population of 917,170 with original 5 constituencies of Rongo, Migori, Uriri, Nyatike and Kuria. Using the population quota which appears to have been used allover, the county deserved a total 6.8 constituencies which rounds up to 7.
The County however got 3 additional constituencies to total up to 8. Just like Vihiga, this cannot be explained even if it was assumed the county has unique features (read geography, means of communication, community of interest, historical, economic and cultural ties) which would have attracted the use of the deviation percentages.
This is because if the 30 per cent deviation less the population quota is used, the county would have required actually 10 constituencies and not 8 and if the deviation of 30 per cent more was applied, it would have needed only 5 constituencies.
Similarly, Homabay would have 7 constituencies if the standard population quota alone is used yet it somehow managed to get an additional constituency of Homabay Town to make the counties constituencies total 8. If either of the two deviations is used, they yield either 6 or 10 constituencies.
Again, there is no way the additional constituency can be explained under the law and there are good grounds for challenging the constitutionality of such constituencies.
And then there is the issue of the cancelled results of sections of North Eastern and Rift Valley provinces. Although the government cancelled the results of Eight districts- Lagdera, Wajir East, Mandera Central, Mandera East and Mandera West, Turkana Central, Turkana North and Turkana South, the IIBRC used the “cancelled” results in these areas to work out the boundaries.
Following the cancellation over what Planning minister Wycliffe Oparanya said were “glaring inconsistencies”, sections of area leaders moved to court and their case which was due to be heard on the day the new list was issued (Tuesday) was adjourned to early next year.
The use of the population figures which are in doubt is evident, for example, in Mandera County where the commission appears to have used the 30 per cent greater than the population quota in deciding the 6 constituencies.
The county which originally had 3 constituencies has a population of 1,025,756 according to the cancelled 2009 census results. If this population is divided with the population quota of 133,138, the place needed 8 constituencies.
If the 40 per cent less the population quota was used (assuming Mandera is a sparsely populated area), it would have required 13 constituencies, 11 constituencies if 30 per cent less was used and finally 6 constituencies if 30 per cent plus formulae was used.
The dilemma in this is that while one would not expect IIBRC to deny these “disputed areas” new boundaries, it would also not be fair to use disputed figures whose truth or untruth is yet to be known.
This is because the boundaries would significantly change, for instance if it was confirmed that indeed Mandera Central constituency is not the fourth largest constituency in Kenya in population terms as the census results showed.
Then again there is the other issue of cities where although the recent census classified Nairobi, Mombasa and Kisumu as cities, only Nairobi was considered as a city in the delimitation exercise and was therefore subjected to the 40 per cent plus the population quota for cities criterion.
The effect this had is that Nairobi appears to have been discriminated against by being subjected to the maximum deviation of +40 per cent thus limiting the number of constituencies it could get. If Kisumu was subjected to this arrangement, it would have 5 constituencies instead of the 7 it got.
If the same was applied for Mombasa, it would have gotten 5 constituencies instead of the 6 it got. If Nairobi was exempted from this arrangement, it would have gotten a whopping 23 constituencies and not the 17 it got.
“A number of Commissioners – for largely vested political reasons – have insisted on a legalistic definition of city as referring only to Nairobi (“the only City in the country”), and excluding Mombasa and Kisumu, thus in effect not only ignoring the CBS classification but also the operational demographic definition of what is a city,” argued Com. John Nkinyagi last week.
Finally, there is the problem of boundaries which the commission did not give; so that although it is known an ideal constituency in Nairobi would have about 184,000 people, it cannot be known for now what areas would entail that population.
“This is why we really need to see the boundaries first. This is critical for all of us!” Mbarire added.
When everything is added up, it emerges that largely- the commission followed the law in drawing up the list of new constituencies but gerrymandered in a number of cases, some of which have been analyzed above.
Majority of the disputed cases are as a result of lack of education on the law guiding the exercise, lack of boundaries, over-expectation by the people and their leaders and lack of clear understanding of the formulae used.
Ends……………./.
