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East African Standard
December 25,
2002
Summary: Editorial pointing
out the severe disparities of representation in Kenya, such that
electoral districts with very different population sizes are
represented by the same number of seats in parliament.
http://www.eastandard.net/commentaries/column/col2512200202.htm
East African Standard
Distribution of parliamentary seats is unfair
By Kibe Mungai
December 25, 2002 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’Äôs
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 ’Äúconstituencies shall contain as nearly
equal numbers of inhabitants as appears to the Commission to be
reasonably practicable’Äù. 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’Äôs
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 ’Äúare 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’Äù. 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: ’ÄúLegislators
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.’Äù The true character and extent of Kenya’Äôs
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’Äôs
smallest, poorest and most geographically dispersed ethnic
communities are systematically over-represented in Parliament. They
are allocated more constituencies than those allocated to Kenya’Äôs
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 ’Äúdecision 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’Äù. 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, ’Äúthe discrepancy
in parliamentary constituency sizes destroyed the opposition’Äôs
chances of converting a numerical majority among the urban
population and sedentary cultivators into coterminous majority
parliamentary seats’Äù. 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’Äôs 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 ’Äî 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. |
