Both Ligale and his critics are wrong

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By Moses Kuria

The unfolding debate over the proposed constituency boundaries is a text book case of a tragic-comedy; a regrettable cocktail of a perilous tragedy that threatens to wipe away all the reform gains of the last three years and a farcical comedy where all of us are scampering to join the theatre of the absurd.

On the one side of this melodramatic coin is Andrew Ligale, the candidate who lost the ODM nomination race for Vihiga constituency to Yusuf Chanzu in 2007 while on the other are his critics who include Mathira MP Ephraim Maina and Danson Mungatana of Garsen.

Justice, National Cohesion and Constitutional Affairs Minister Mutula Kilonzo – the man under whose docket the boundaries review exercise falls – plays the role of supporting the orchestra.

Let\’s take Ligale\’s case first. Tragically, Mr Ligale\’s appointment as the chairman of the Interim Independent Boundaries Review Commission (IIBRC) was a grave error of commission.

In our national quest to end impunity, we committed another act of impunity by allowing a loser in the 2007 elections to oversee such a solemn exercise.   The result? Among the constituencies Ligale has recommended for splitting is Vihiga. Good grief! Even if the good people of Vihiga deserve another constituency, how would good old Andrew convince the world that this decision has no whiff of self interest?

In any case, the intellectual threshold required to undertake this momentous assignment would appear to be way above the tough talking Andrew Ligale. To provide comical relief to bewildered Kenyans, Ligale now says that he can only say how many constituencies are allocated to each of the eight provinces that are to be obliterated by the new Constitution but as for the actual boundaries, this is a task too complicated for him that he opts to leave it to his successor, the Independent Elections and Boundaries Commission.

Like an expert Spanish matador, Ligale has swayed the red cloth to the direction that he reckons will derive maximum advantage to his political persuasion. Comically, his critics including Hon Maina and Hon Mungatana have, like the bullfighters, followed this ruse.

As my younger friends would say, Ligale has them in "a box."  They seem to be arguing their case using the same flawed arguments that cunning Ligale is posing. The issue is not which province deserves how many extra electoral areas. The cardinal point is that the new Constitution has no respect for neither province nor counties when it comes to representation of the people. The equality of the vote that is enshrined in the new Constitution requires every single member constituency to pass the muster.

The argument based on the provinces was used by the experts who were retained by the Parliamentary Select Committee in Naivasha to convince the members that all provinces were winning from the 80 extra constituencies. When the time for drafting came, the Constitution recognised each constituency on its own merit and set specific criteria.

In constitutional wisdom, all the constituencies in the country have to be as near equal in terms of population as possible, and any deviation from that means it should not exceed 30 percent.  That was the general rule. For every rule, there is an exception. In this case, sparsely populated and urban areas were allowed wider latitude, a deviation of 40 percent.  There is no reference to a province, a county or a Bantustan.

It was "each constituency", period! With this in mind it is clear that Ligale is wrong and his critics are barking at the wrong tree. In the US, the courts decided that a deviation of any constituency by more than 0.7 percent of the allowed deviation is unconstitutional. That is the fate that Ligale\’s flawed process will suffer here, either in the High Court or at the Supreme Court once formed.

Unfortunately, failure by the framers of the constitution to provide specific legal definition for "Sparsely Populated" and "Urban Areas" opens a Pandora\’s Box of political mischief and debauchery.

As for my friend Hon Mutula Kilonzo, it may be a case of the chef complaining about the quality of his own food. That should also inform his predecessor, the indefatigable Martha Karua. Whereas the constitutional review process was well structured with a Committee of Experts, a Reference Group of stakeholders and parliamentary oversight through the Parliamentary Select Committee, a committee of the full House and ultimately, the referendum, in Ligale\’s commission we advertently or inadvertently created a rogue commission that was accountable only to itself. That was the high noon in entrenching impunity to fight impunity.

My take is that whatever Ligale and his divided commission will come up with is only a guide. Ligale\’s commission is a hydra-headed child of the old Constitution. Only the incoming Independent Elections and Boundaries Commission, with approval of Parliament should have the final say on the new constituency boundaries. As for Ligale and his report, it can only provide broad guidelines at best. At worst it should be treated like an opinion poll in Communist Soviet Union-Not necessarily incorrect but of no known value.

(The author is the spokesman of the Party for National Unity (PNU). The views expressed herein are his own and do not represent the position of the Party for National Unity. [email protected]a.com)

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