As the conflict between lawyers and a section of the Judiciary on the constitution review process raged in October, the High Court delivered a landmark ruling which will affect the evolution of democracy.

In May this year, two High Court Judges, Justice Mbogholi Msagha and Justice JVO Juma, sitting as a constitutional court, delivered a ruling in the case of Hon John N. Michuki vs Attorney General and the Electoral Commission of Kenya, which took issue with the fact that the size of constituencies manifests serious imbalances in representation.

But the ruling did not make clear orders thereby prompting Michuki’s lawyer, Dr Gibson Kamau Kuria, to make an application for approval of orders contemplated in that ruling.

On October 14, 2002 the two judges approved the draft submitted on behalf of Michuki. The ruling approved the draft order.

Section 82 of the Constitution gives protection against discrimination on the basis of sex, ethnicity, race and political opinion of any person.

Section 42 of the Constitution makes provision for the division of Kenya into constituencies, number of constituencies and the factors to be considered in and duration for carrying out such division.

Section 42(3) provides that all “constituencies shall contain as nearly equal numbers of inhabitants as appears to the Commission to be reasonably practicable”. However, the Commission may depart from this principle in order to take account of the density of population, population trends, means of communication, geographical features, community of interest and the boundaries of existing administrative areas.

The number of inhabitants is the constitutional principle or rule for determining the size of constituencies. The other factors enumerated above are the exceptions that the Commission may consider to justify or depart from the principle of equality.

Unfortunately, since independence, but most particularly since 1986 when electoral constituencies were increased by 30 to 188, ethnic considerations and boundaries of existing administrative areas have been the major considerations in constituency demarcation as opposed to the number of inhabitants.

In other words, exceptions to the rule or principle have been elevated above the rule itself and this was the crux of Michuki’s constitutional application.

The two learned judges noted that a democracy is founded on the principles of equal representation and the one person one vote precept and added that this principle is necessarily violated or transgressed where there “are constituencies that have more than 100,000 voters and others with less than 10,000 voters, yet in both cases their representatives have the same or equal voice in Parliament”.

To underscore this principle of equality the judges quoted with approval the following words of former Chief Justice Earl Warren, announcing the 1964 decision of the US Supreme Court in the case of Reynolds v Sims: “Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and impaired fashion is a bedrock of our political system. . . And, if a state should provide that the votes of citizens in one part of the state should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the state, it could hardly be contended that the right to vote of those residing in the disfavoured areas had not been effectively diluted.”

The true character and extent of Kenya’s electoral inequality bear emphasis. A study by the Institute for Education in Democracy, Understanding Elections in Kenya: A Constituency Profile Approach, carried out after the 1997 General Election, made three important observations.

First, the study noted that ethnic calculations and gerrymandering have heavily influenced constituency-making in Kenya with the result that members of Kenya’s smallest, poorest and most geographically dispersed ethnic communities are systematically over-represented in Parliament.

They are allocated more constituencies than those allocated to Kenya’s larger and more progressive groups. The small ethnic groups have historically offered core support to Kanu, the party that has ruled Kenya since independence.

Secondly, the study observed that the 1986 boundary review was influenced mainly by political, not demographic, factors.

The review committee neither abolished a single under-populated seat nor create a new constituency in over-populated urban areas.

Nairobi, for instance, showed clearly substantial increase to justify additional electoral areas. The study opined that the “decision to deny Nairobi its demographic right can only be explained by the desire to maintain the over-representation of rural areas and, especially the semi-arid and arid regions to ensure that Parliament provides a check to the economic might of the capital”.

The study observed that the political implication of constituency -making in Kenya has been to enable Kanu, a party with a minority of the vote, concentrated in semi-arid areas, to win a majority in the National Assembly. With the advent of multi-party politics the average size of a secure Kanu constituency was only 28,350 voters, while seats in the opposition areas were on average 80 per cent larger with 52,169 voters. Disputed areas lay in the middle. In 1992 and 1997, “the discrepancy in parliamentary constituency sizes destroyed the opposition’s chances of converting a numerical majority among the urban population and sedentary cultivators into coterminous majority parliamentary seats”.

The December 27 polls take place under the 1997 electoral conditions and the opposition hopes to defeat Kanu despite the serious discrepancies in parliamentary constituency sizes.

Whether the opposition parties realise their hope there is no denying that electoral discrepancies have and will continue to make humus for political instability so long as the political voices and wishes of some of the citizens continue to be effectively suppressed in Parliament.

Even worse, democracy in Kenya will continue to suffer a credibility gap.

More importantly, the issue of existing constituency sizes will have undoubted implications on Kenya’s future because the ninth Parliament will be in may ways a transitional one.

First, the cardinal role of completing the constitution review process rests in the ninth Parliament which, like the previous ones, particularly the seventh and eighth parliaments, will be founded on debased or heretical democracy.

This concern should make reasonable people to wonder whether a democratic future can be mediated through a process founded on the antithesis of democracy — inequality of citizens.

Secondly, the National Constitution Conference which will debate and pass the draft Constitution will consist of representatives elected or appointed partly through unequal parliamentary representation and partly on administrative boundaries established to justifying gerrymandering.

Admittedly, it is too late to redress these electoral imbalances, but constitution-making should not be completed on the basis of unequal democracy.

The draft Constitution of Kenya proposes to introduce proportional representation by making provision for election of 100 MPs on party lists.

In principle the proposal, which has been criticised for the wrong reasons, is fine. However, unless and until existing imbalances in constituency sizes are addressed, it would make better sense to demarcate the large constituencies before political parties are given the privilege of securing easy passage of cronies to Parliament.

Indeed, in 1996 when the ECK increased constituencies to the constitutional maximum of 210, it recommended to Parliament to legislate for a further review that would create an additional 48 constituencies.

This recommendation has been given impetus by the ruling of the Constitutional Court and it must be implemented as soon as possible to secure democracy in Kenya.