My attention has been drawn to reports concerning the issue of constituency boundaries, occasioned by the ongoing countrywide exercise by the Interim Independent Boundaries Review Commission to collect views from wananchi, related to the same.
I have read some of these views and reports with much concern and disbelief. I now wish to set the record straight.
In 2001, I successfully sued the Attorney-General, the then Electoral Commission of Kenya and the then Constitution of Kenya Review Commission in relation to the creation of new districts and constituencies.
The High Court confirmed there was the constitutional right to create districts under the District and Provinces Act, 1992, but declared section 5 of the same Act null and void, in so far as it purported to amend/ repeal Section 4 of the Constitution as the Constitution cannot be amended by a subsidiary legislation.
On the issue of the constituencies, the same court noted that this lies in the province of the Commission which is a creature of the Constitution. It also noted and cited from the US Supreme Court reports which have enunciated very well the principles of equal representation and the principles of one person one vote.
The High Court likewise concurred with me that as matters stood then, there was and still is, some imbalance in representation, considering there are some constituencies that have more than 100,000 voters and others with less than 10,000 voters — yet in both cases, their representatives have equal voice in Parliament.
According to the report, "it would defeat the principle solemnly embodied in the Great Compromise — equal representation in the House for equal numbers of people — for us to hold that, within the states, legislatures may draw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a congressman than others...
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 unimpaired 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 court found that I had faulted the Electoral Commission sufficiently enough to require it to address the issue raised. In this respect, the Court ordered "..... the creation of constituencies on basis other than of one person one vote contravenes the applicant's right not to be discriminated against".
The issue of representation ought to be handled with sobriety. The principles of equal representation and one person one vote must be the guiding factors.
As President Kibaki reiterated in his speech on Kenyatta Day, "The need to apply the principle of one person one vote led to the establishment of the Interim Independent Boundaries Review Commission in accordance with the Kriegler Report.
It is charged with the responsibility of carving out electoral and administrative boundaries. At the end of its work, the Boundaries Commission will hopefully give the country what the people have been looking for, namely providing the electoral body with approximately equal size constituencies demographically."
Again the High Court decreed that the Constitution did not permit the ECK to so depart from the principle of a constituency and equal number of inhabitants in every part of the country as to permit the worth of any constituency to be reduced.
Every Kenyan has a right to cast a vote in either the presidential, parliamentary or local government elections that is numerically equivalent to the vote cast by any other voter.
I hope the inclusion of these principles in our Constitution will be supported by the ambassadors and their governments, who have passionately and persistently championed for the application of democracy in the running of public affairs.
I wish to appeal to Kenyans, particularly my parliamentary colleagues, to exercise a lot of restraint on this matter. Any inflammatory statements can cause disaffection.
John Michuki is the Minister for Environment and Mineral Resources.
I have read some of these views and reports with much concern and disbelief. I now wish to set the record straight.
In 2001, I successfully sued the Attorney-General, the then Electoral Commission of Kenya and the then Constitution of Kenya Review Commission in relation to the creation of new districts and constituencies.
The High Court confirmed there was the constitutional right to create districts under the District and Provinces Act, 1992, but declared section 5 of the same Act null and void, in so far as it purported to amend/ repeal Section 4 of the Constitution as the Constitution cannot be amended by a subsidiary legislation.
On the issue of the constituencies, the same court noted that this lies in the province of the Commission which is a creature of the Constitution. It also noted and cited from the US Supreme Court reports which have enunciated very well the principles of equal representation and the principles of one person one vote.
The High Court likewise concurred with me that as matters stood then, there was and still is, some imbalance in representation, considering there are some constituencies that have more than 100,000 voters and others with less than 10,000 voters — yet in both cases, their representatives have equal voice in Parliament.
According to the report, "it would defeat the principle solemnly embodied in the Great Compromise — equal representation in the House for equal numbers of people — for us to hold that, within the states, legislatures may draw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a congressman than others...
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 unimpaired 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 court found that I had faulted the Electoral Commission sufficiently enough to require it to address the issue raised. In this respect, the Court ordered "..... the creation of constituencies on basis other than of one person one vote contravenes the applicant's right not to be discriminated against".
The issue of representation ought to be handled with sobriety. The principles of equal representation and one person one vote must be the guiding factors.
As President Kibaki reiterated in his speech on Kenyatta Day, "The need to apply the principle of one person one vote led to the establishment of the Interim Independent Boundaries Review Commission in accordance with the Kriegler Report.
It is charged with the responsibility of carving out electoral and administrative boundaries. At the end of its work, the Boundaries Commission will hopefully give the country what the people have been looking for, namely providing the electoral body with approximately equal size constituencies demographically."
Again the High Court decreed that the Constitution did not permit the ECK to so depart from the principle of a constituency and equal number of inhabitants in every part of the country as to permit the worth of any constituency to be reduced.
Every Kenyan has a right to cast a vote in either the presidential, parliamentary or local government elections that is numerically equivalent to the vote cast by any other voter.
I hope the inclusion of these principles in our Constitution will be supported by the ambassadors and their governments, who have passionately and persistently championed for the application of democracy in the running of public affairs.
I wish to appeal to Kenyans, particularly my parliamentary colleagues, to exercise a lot of restraint on this matter. Any inflammatory statements can cause disaffection.
John Michuki is the Minister for Environment and Mineral Resources.
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