IEBC Chairman Isaack Hassan -Pic/Files

Independent Elections and Boundaries Commission Chairman Issack Hassan has launched the report of creation of the 290 constituencies. In line with giving views various Kenyan living abroad namely Professionals, Business people and aspiring 2012 candidates for elected seats Terry Kairu – Kiambu Senate, John Macharia – Nairobi Senate, Kimani Wairiri – Nyandarua Senate ask that Article 89 of Constitution as was authorized by 6 million Kenyans (67% of voters) on August 4th 2010, be the basis of establishing the constituencies.

The analysis and suggestions of implementation below can lead to elections of August 14th 2012.

Constitution Article 89
Clauses as Guiding Creation of Constituencies 

(1) There shall be two hundred and ninety constituencies for the purposes of the election of the members of the National Assembly provided for in Article 97 (1) (a)
This article is clear and creates the 290 seats that members of the national assembly will be elected through and further forms the basis of county assembly wards establishment.

(2) The Independent Electoral and Boundaries Commission shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than twelve years, but any review shall be completed at least twelve months before a general election of members of Parliament.
Based on the constitution passage August 4th 2010, if seating parliament had worked on implementing what 6 million Kenyans envisioned, the bill of creation of IEBC would have passed 6 months after constitution passage. By August 2011 the constitution chapter 7 would have been complete. This should be corrected in future and all constitutional laws abided by.    

(3)The Commission shall review the number, names and boundaries of wards periodically.
By using the word, “wards periodically,” the constitution sets an allocation of adjustments that the proposal made of establishing wards from constituency and county can apply as per the table below. 

(4) If a general election is to be held within twelve months after the completion of a review by the Commission, the new boundaries shall not take effect for purposes of that election.
The constitution envisioned this completed in 12 months after passage. The constitution further allocates the election August 14th 2012. This clause should be abided by. For now the IEBC has to do with the best timeline it can to abide by August 14th 2012 election date.

(5) The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota, but the number of inhabitants of a constituency may be greater or lesser than the population quota in the manner mentioned in clause (6) to take account of— (a) geographical features and urban centres; (b) community of interest, historical, economic and cultural ties; and (c) means of communication.
The population quota is created by constitution in article 89 (12) by dividing the number of inhabitants of Kenya by the number of constituencies. Based on 2009 census 38,610 097 people divided by 290 creates a quota of 133,138 people. 

(6) The number of inhabitants of a constituency or ward may be greater or lesser than the population quota by a margin of not more than— (a) forty per cent for cities and sparsely populated areas; and (b) thirty per cent for the other areas.
Based on quota of 133,138 every constituency created by 6 (a) would have the lowest constituency with 79,883 people and the highest 186,383 which would most likely affect Nairobi County or City and Mombasa County or City. The other counties would apply 6 (b) and have each constituency with no less than 93,197 and not more than 173,079.   

(7) In reviewing constituency and ward boundaries the Commission shall–– (a) consult all interested parties; and (b) progressively work towards ensuring that the number of inhabitants in each constituency and ward is, as nearly as possible, equal to the population quota.
This clause establishes that in reviewing the IEBC shall consult interested parties and further progressively work toward each constituency having as nearly as possible equal to population quota. 

(8) If necessary, the Commission shall alter the names and boundaries of constituencies, and the number, names and boundaries of wards.
The constitution gives the IEBC the authority to alter any names and boundaries.

(9) Subject to clauses (1), (2), (3) and (4), the names and details of the boundaries of constituencies and wards determined by the Commission shall be published in the Gazette, and shall come into effect on the dissolution of Parliament first following their publication.
The 290 constituencies created will come to effect when the current parliament dissolves.

(10) A person may apply to the High Court for review of a decision of the Commission made under this Article.
This creates the litigation based on decisions that maybe made that are not consistent with this constitution. For example, Isiolo with a population of 143,294 residents per population census has two constituencies today. Only one constituency can be created today without violating Clause 6 (b). However once the Resort City planned is established and the population moves up to say a million by 2020 then the county would see their constituencies increase.   

(11) An application for the review of a decision made under this Article shall be filed within thirty days of the publication of the decision in the Gazette and shall be heard and determined within three months of the date on which it is filed.
This creates the time period and the courts have to be ready for any challenges to finish rulings as fast as possible. For example if the gazette publishes the constituencies on April 30th 2012, 30 days end May 30th and the Courts should be ready to expedite all cases in order to finish them by June 4th 2012.  

(12) For the purposes of this Article, “population quota” means the number obtained by dividing the number of inhabitants of Kenya by the number of constituencies or wards, as applicable, into which Kenya is divided under this Article.
This article defines the population quota as dividing the number of inhabitants of Kenya by number of constituencies. This is achieved by population census divided by 290 constituencies.  

APPLYING CONSTITUTION ARTICLE 89 to Create 290 Constituencies
Timeline to Elections August 14th 2010

January 10th – 31st 2012. 21 days of receiving views
February 28th 2012. Gazzette publication of constituencies as created and county government as proposed.  
March 1st - 30th 2012 All reviews and legal cases filed and heard. Last day of filing March 30th 2012. Last ruling April 5th 2012.
April 30th 2012 Publication of final constituencies.  
May – 14th August 2012 The IEBC plans the voting system independently. 

CONSTITUENCY BOUNDARIES 
This can be created based on household population as counted in 2009 to allocate constituency based on number of houses or people as counted in a constituency.

ALLOCATION TABLE

ACHIEVING EQUAL REPRESENTATION Constitution Article 89 (5), (7 a, b), (12)
Population – Population census 2009 of 38,610,097 per each county
290 – 290 Constituencies allocation
Quota - Population divided by 290 seats average 133,138. Best Range (101,539 - 144,035)

COUNTY ASSEMBLY CREATION Constitution Article 177
A - Wards created from 290 constituencies Article 97 1 (a) Constituency definition
B - Wards created from County as constituency Article 97 1 (b) Constituency definition
C- Total proposed elected to each county assembly
D – Nominated 1/3 of elected to comply with 2/3 Gender and other requirements. Article 177 1(b) (c)
E - Total proposed members of each county assembly

COUNTY EXECUTIVE COMMITTEE MEMBERS Constitution Article 179
F - Governor and Deputy Governor
G - Executive Appointees. 1/3 of County assembly or 10 max if county assembly over 30 Members
H - Total Executive Committee in each County

 County Assembly creation based on population

1. 560,000 or less, a 12 member assembly (8 elected and 4 nominated)
2. 560,000 – 1.2 million, a 15 member assembly (10 elected and 5 nominated)
3. 1.2 m- 1.5m, a 18 member assembly (12 elected and 6 nominated)
4. 1.5 m – 2m, a 21 member assembly (14 elected and 7 nominated)
5. Nairobi 3.12 million, a 33 member assembly, (22 elected and 11 nominated)