Kenya: What the Constitutional Court’s ruling on boundaries and electoral areas means for minority communities
On 9 July 2012, a panel of five judges made their ruling on several petitions filed by dissatisfied community members against how the Indepenedent Electoral and Boundaries Commission (IEBC) in Kenya had gone about fixing new boundaries and electoral areas. MRG’s Africa Regional Information Officer caught up with Molu Korepu Tepo, a consultant with MRG under the Good Governance Project and asked him what the court decision effectively meant for minority and indigenous communities.
Q: What is the background to the current constitutional court’s ruliing on boundaries and electoral areas?
With the promulgation of a new Constitution in August last year, the Indepenedent Electoral and Boundaries Commission (IEBC), one of the new institutions created under Article 88, embarked on a tedious process of demarcating new boundaries and electoral areas as stipulated in the constitution.
The IEBC is mandated under Article 89 to fix boundaries of electoral units.
Using the report of the interim Independent Boundaries Review Commission under old constitution as a primary source the IEBC went ahead, primarily using population as a parameter, to determine new boundaries and created 290 constituencies and electoral areas.
Article 89 (6) states that ‘the number of inhabitants of a constituency or ward may be greater than the population quota or lesser than the population quota by a margin of not more than (a) forty per cent for cities and sparsely populated (b) thirty per cent for other areas.’
Q: So IEBC is within its mandate, why then did the communities petition court?
Although Article 89(5) stipulated that IEBC would also consider geographical features, urban centres, community of interest, historical and cultural ties and means of communication, the Commission in some instances altered the names and boundaries of constituencies with little regard to this requirement.
It is against this background that minority communities, mostly pastoralists, petitioned court to have other considerations like distance taken into account during the boundary review process.
Using population as a primary parameter in boundary allocation, argued minority communities, would only reinforce marginalization because their communities can’t make up the required numbers. This sort of arrangement, according to Wilson Kipkazi, a Programme Officer with the Endorois Welfare Council, would create more ‘minorities within minorities’.
To illustrate Kipkazi’s assertion is the fact that under the new suggested boundary allocation, most minority communities without numbers to make an electoral unit or ward were either left out or merged like the Endorois and Iichamus, who were merged under Baringo County.
Once the IEBC gazetted its report of the proposed boundaries and electoral areas on March 7, 2012 as required by law, many Kenyans lodged a floodgate of petitions against the decison of the IEBC.
Q: How did the judiciary handle the process?
The Chief Justice appointed a panel of five judges who heard the cases and made a decision on July 9, 2012. The Court, largely, upheld the decison of the IEBC but made some minor changes.
‘The result and approach taken by the IEBC was reasonable; sparsely populated areas were part of the constituencies protected areas for purposes of the first review. We have evaluated the methodology used by the IEBC and we do not detect any breach of the Constitution or the Fifth Schedule of the IEBC Act,’ read the judgment.
Whereas the court recognized the role played by minorities and the marginalized in nation-building and the need for adequate representation, it ruled that the IEBC was not obliged to create sectoral ethnic or clan enclaves to protect the rights of marginalized communities.
‘Delimitation is not intended to ossify boundaries and communities into history; it is intended to give everyone a voice. Delimitation of electoral units does not stop individuals form going on with their daily activities (fishing, grazing using water pans), boundaries are not fences; the Constitution is protective of the fundamental freedoms and rights of every person's rights,’ the judges reasserted.
‘What we must discourage is the concept of exclusive wards and constituencies being formed on the basis of sectoral interests that do not meet the objectives of the Constitution delimitation - not the only way through which the problems of the marginalized will be addressed.’
The judges said they had no power to create new constituencies because the cap was at 290 electoral units and the IEBC had already covered all of them.
The IEBC is now expected to gazette a fresh list of wards as well as the renamed constituencies by amending the Legal Notice 14 of 2012 that gazetted the commission's report on boundaries.
Q: Are there any gains for minorities in the ruling?
Court ruled that a new ward be created in Nakuru County for the Ogiek Community. Tinet Ward was re-aligned in Kuresoi South Constituency. It shall comprise Tinet, Kapnanda, Chepalungu and Chemaner sub locations with a population of 32,418.
The Abasuba minority Community got their own constituency. The IEBC renamed the two Constituencies of Gwasi and Mbita as Suba North and Suba South respectively based on the lobbying by the Abasuba Community.
Q: Any losses?
Among the 77 petitions that were dismissed is the one for North Horr, the Kenya’s largest constituency and home to Gabra, a minority pastoral community in Arid & Semi-Arid Lands (ASAL). Sitting on 35,210 square kilometres, North Horr is equivalent to the combined size of Nyanza, Western and Central provinces (15 Counties, 6% of total Kenyan landmass). The constituency has 75,196 people and a single MP. The communities feel it is not practical in terms of representation and service delivery to have one MP for such a big constituency.
The Endorois and Lichamus communties were put together in one of the wards. Some members of the Endorois community petitioned the Court to reverse the decision but lost. Kipkazi said ‘those Endorois will forever remain as a minority within a minority’.
Despite the right of appeal, the 90-day period stipulated for legal recourse on boundary delimitation expired on Tuesday 10 July 2012.
Q: What do you recommend minorities to benefit from representation?
For minority communities to benefit, legislation toward equitable and adquate represetation has to be put in place. And the most viable option available for accessing representation is through the politcal parties. Minorities have to get organized, identify and influence the political parties to consider them as an important constituency.
Download the judicial review by clicking the link below.
Read MRG's report Kenya at 50:Unrealized rights of minorities and indigenous peoples, which reviews the current status of minority and indigenous groups in Kenya.