We all remember the aftermath of the 2007 general elections that led to the disbandment of the Electoral Commission of Kenya and the establishment of the two interim bodies to take over its mandate The Interim Independent Electoral Commission (IIEC) was established to deal with the conduct and management of elections and the Interim Independent Boundaries Review Commission (IIBRC) to address the issue of delimitation of boundaries of electoral and administrative units. This was implemented following the recommendations of the IREC Report (popularly known as the Krieger Report).
On the delimitation of electoral boundaries in Kenya, the Kriegler Report concluded that there existed gross disparities in the voting populations of country’s constituencies.
This state of affairs breached the fundamental principle on the equality of the vote which was clearly articulated and enshrined in Section 42(3) of the former Constitution of Kenya, namely one-person, one-vote. This long-standing discrimination in itself impaired the integrity of the electoral process, mainly, but not only, in relation to Parliamentary elections.
Kenya voted in a new Constitution on 4th August 2010. The Constitution establishes the Independent Electoral and Boundaries Commission (IEBC) to deal with both conduct and management of elections and delimitation of boundaries of electoral units. With regard to boundaries delimitation, IEBC is mandated to review boundaries of constituencies every 8 to 12 years in order to eliminate disparities in voting populations and progressively ensuring equality of population in every constituency and ward.
The Constitution sets out the factors that the Commission must take into account while doing this, including, geographical features, community of interest and means of communication.
The IIBRC carried out its mandate as outlined under Section 41C of the former Constitution and Section 27 of the Sixth Schedule of the new Constitution and produced its Report. The Report was tabled in Parliament and debated by the Departmental Parliamentary Committee on Justice and Legal Affairs which also gave its Report. Following the presentations of the Parliamentary Committee Report to Parliament, the IIBRC Report was adopted but several issues were raised by the public and Members of Parliament. It is as a result of these issues that the IEBC Act, 2010 mandated IEBC in its Fifth Schedule to resolve the issues arising out of the First Review as done by the IIBRC.
Issues Arising out of the First Review
While Article 89 of the Constitution sets out the Commission’s mandate relating to boundaries delimitation generally, the Fifth Schedule of the IEBC Act, 2011 provides the scope of the mandate of the Commission in dealing with the issues arising out of the First Review. The Act has gone further to direct the Commission on what these issues are – i.e. addressing issues of new constituencies falling outside the population quota, subject to the criteria set out under Article 89(6) of the Constitution.
The Commission’s mandate therefore as far as the First Review is concerned is limited to what the Act provides.
The Commission is required to use the IIBRC Report as its primary reference material and that of the Parliamentary Committee as the secondary material. After resolving the issues of constituencies falling outside the population quota, the Commission is then required to re-distribute such wards or administrative units in the affected constituencies as may be appropriate.
While doing all this, the Commission is required not to use new definitions of cities, urban areas or sparsely populated areas or to new population figures. The Commission is also required by the law to use the enumerated national census figures and not projected figures.
The Methodology and Structure of the Report
A lot of work and thought has gone into this process. In exercising its mandate, the Commission studied the two reference materials (Reports of IIBRC and Parliamentary Committee together with their annexes) and analyzed over 20,000 hours of the verbatim reports captured during IIBRC public hearings and written memoranda submitted to IIBRC. In doing this, the Commission used its own staff, former staff of IIBRC relevant to the process and also seconded staff from relevant Government agencies and Departments such as the Department for Resource Surveys and Remote Sensing.
As regards the Structure of the Report the Preliminary Report is structured into Seven (7) Chapters; Chapter I outlines background information on boundary delimitation, Chapter II gives an overview from a historical perspective on boundary delimitation in Kenya. The Legal framework governing the delimitation of boundaries of Constituencies and wards is handled in Chapter III.
A review of the IIBRC boundary delimitation Report is presented in Chapter IV, while Chapter V outlines the criteria used by IIBRC in the First Review. Chapter VI presents the analysis done by IEBC of all the public submissions, the IIBRC Report and the Parliamentary Committee Report, emerging issues and gives the proposals of IEBC. Lastly, Chapter VII outlines the framework on public presentations and public consultation forums to be undertaken by IEBC from the date of the publication of the Report.
The Preliminary Report and Timelines
Allow me to restate that the Commission is mandated to give proposals on the issues arising out of the First Review as regards constituencies that fall outside the population quota against the criteria set out in the Constitution. The Preliminary Report therefore limits itself to these issues and proposals thereto.
The Commission is then required to publish the Preliminary Report and avail it to the public for discussion for a period of 21 days. We are also required to invite representations on the proposals in the Preliminary Report. To this end, the Commission will accept written submissions from the public hand delivered to the Constituency Election Coordinators (CECs), submissions may also be emailed to us (email@example.com). The Commission will also receive oral presentations during public hearings to be conducted in all the counties.
The Commission will avail the report to the general public and make announcements in the newspapers and radio of the dates and venues for the public hearings. We urge all Kenyans to come out and participate in this momentous exercise.
After the 21 days for public consultations, the Commission is allowed 14 days by law to consider the input received from the public and revise the proposals in the Preliminary Report and forward the Revised Report to Parliament. The Parliament Committee on Justice and Legal Affairs will have another 14 days to deliberate the Revised Report and forward to Parliament for discussion for another 7 days.
Parliament is then required to forward its resolutions to the Commission for the Commission to prepare the Final Report for gazettement.
Once the Final Report is published and gazetted, the public will have another 30 days to apply to the High Court to review any decision made by the Commission in the Report. The Act allows the High Court to hear and determine such applications within 30 days of their filing. Once this exercise is over, the Commission will then proceed to map out the new electoral units and polling stations for purposes of voter registration and other electoral processes such as voter education on the new boundaries will follow accordingly.
What remains now, is for the Kenyan public to read and understand the Report and submit their input based on the Report to the Commission.
Allow me to make a humble plea to all Kenyans and particularly our leaders to exercise decorum as we discuss the issues and exchange ideas during this period. I would like to assure Kenyans of the commitment of the members and staff of the Commission in exercising this very important mandate.
We must appreciate their efforts. The Commission recognizes the sensitivity of some of the issues at hand and we reiterate our devotion in diligently exercising our constitutional mandate fairly and independently while upholding the rule of law.