The 265 Districts of 2010

Introduction

Between them, both Presidents Moi and Kibaki created 218 additional Districts in the period between 1992 and 2009. This sub-division of Districts was generally well-received by residents who believed that national government services would be brought closer to them and security would improve.

265 Districts of 2010

The path from the 47 Districts of 1992 to the 265 Districts of 2010 was not well marked. Most of these Districts were announced at political rallies without any prior communication with the people of the area. Such sub-divisions were used to  maintain or win political loyalty. Obviously it would be impossible at such meetings for the people to know where the boundaries of their new District lay, or where its headquarters would be.

This haphazard creation of Districts continued at pace until finally the matter was raised in Parliament in April 2010 when an MP sought to know just how many Districts really existed, and whether government had allocated any finances to run these Districts. This debate in Parliament exposed the confusion, lack of transparency, and unplanned nature in the creation of districts by the executive. Below are excerpts from the Official Report (Hansard) of April 7, 2010, Question 112:

Speaker: Member for Konoin, Dr Julius Kones!

BREAKDOWN OF DISTRICTS PER PROVINCE

Dr Kones asked the Minister of State for Provincial Administration and Internal Security:- (a) to provide the per-province breakdown of the number of districts currently existing in the country; and, (b) state what steps he has taken to legalize all districts that have not been legalized.
The Assistant Minister, Ministry of State for Provincial Administration and Internal Security (Mr. Lesrima): Mr. Temporary Deputy Speaker, Sir I beg to reply.
(a) The breakdown of districts per province cusrrently is as follows:-
(i) Nairobi Province -          9,
(ii) Coast Province -         21,
(iii) North Eastern -          13,
(iv) Eastern -                   55,
(v) Central Province -      37,
(vi) Rift Valley Province -  63,
(vii) Western Province -   30,
(viii) Nyanza Province -    37,
                     Total         265.
(b) With regard to the steps the Minister has taken to legalize all districts, the Minister has presented to His Excellency the President the request made by Wananchi through leaders forums from across the country or what led to the publishing of various gazette notices on diverse dates to inform the public in general the intention of the Government to create new districts in Kenya. ....... . Action to conclusively deal with the establishment of those districts will be dealt with by the Interim Independent Boundaries Review Commission (IIBRC) under the Constitution of Kenya (amendment) Act, 2008 ........
Dr. Kones: Mr Temporat Deputy Speaker, Sir, while thanking the Assistant Minister for that answer, in the course of last year the Government made provisions to put up some new districts. Has the Ministry considered allocating financial resources to the new districts next financial year?
Mr. Lesirma: Yes, Mr. Temporary Deputy Speaker, Sir. Some budgetary provisions were made to cater for the initial construction of those districts but they were not adequate. They will be taken care of in the susequent financial years.
Mr. Litole: Mr. Temporary Deputy Speaker, Sir, I kindly request the Assistant Minister to tell this House whether the newly created Pokot South District is also included in that list.
The Temporary Deputy Speaker (Mr. Imanyara): Mr. Assistant Minister, is Pokot South District among the 256 districts? That is the question.
Mr. Lesirma: Yes, Mr. Temporary Deputy Speaker, Sir. Among the latest 13 newly created districts, Pokot South District is one of them.
The Temporary Deputy Speaker (Mr. Imanyara): Ask the last question, Dr. Kones!
Dr. Kones: Mr Temporary Deputy Speaker, Sir, last year this House passed a Motion that every constituency becomes a district. I can see that there are 265 districts out of 210 constituencies. What special considerations were given to the constituencies that have extra districts?
Mr. Lesirma: Mr. Temporary Deputy Speaker, Sir, it is true that last year all the constituencies became districts. However, we appreciate that some constituencies are larger than provinces necessitating the creation of two or more districts in those constituencies.

From the foregoing, it is clear that the executive created the districts first (without consulting Parliament) and then sought to legalise their actions later! Little wonder that inadequate or no funds were set aside for the establishment of the necessary infrastructure to run the districts. Some of the very large constituencies had more than one district within them, further adding to the confusion, since administrative units in Kenya's structure, are ideally supposed to encompass several constituencies and not the reverse. In truth, these debates on the manner and criteria of creating Districts had been on-going in the last few years including during the 9th Parliament. For further reading, the reader can click on the following links to some of these debates on the Parliamentary (Hansard) reports:

1. Guidelines for Creation of New Districts (Debate in 2009, page 5).

2. Creation of Districts based on Constituencies (Motion in 2008, page 2893).

3. Pre-election pledge by ODM political party to create a district at every constituency (Debate in 2008, page 74).

In some of the debates, the issue was about representation more than it was about administrative decentralisation:

4. Splitting of Constituencies (page 67, Debate in 2007 of the 9th Parliament).

Ideology

Officially, the creation of additional Districts was intended to bring government services closer to where the need was. These services had to do with health, security, courts, schools, land transactions and disputes, financial services, etc. While the idea was a good one, it was not intended to deliver devolution but rather, it was simply the government's channel for decentralising its services. However, the manner in which these Districts were announced i.e., mostly at political rallies, meant that their creation was not preceded by any meaningful aforethought or planning. As a result, many of them existed only on paper and failed to develop requisite infrastructure and staffing levels.

Invariably, this practice further perpetuated the negatives of ethnic homogeneity across the country as these boundaries were not new in the sense of redrawing, but rather, straight forward sub-divisions of existing ones. They also made the Provincial Administration top-heavy, even in its undeveloped state, and expensive to maintain.

Court Ruling

Despite the general acceptance of Districts by the people of Kenya, it came as a bit of a surprise in 2009 when the High Court sitting in Kisii ruled that any Districts  created other than through a legislative process in Parliament were illegal. The ruling came via Constitutional Application 68 of 2009 in the High Court in Kisii (can be downloaded here) delivered on the 4^th of September. Excerpts from the orders that were sought by the applicants included:

"5. A declaration that Kenya has only 46 districts as listed and defined in schedule II of The Districts and Provinces Act, Act No. 5 of 1992 Laws of Kenya namely .......”

"8. A declaration be made that all districts created subsequent to the Districts and Provinces Act 1992 are unconstitutional and therefore non-existent in law.

"16. A declaration that Executive ....... has no authority to decree the creation of Administrative boundaries without approval of parliament, the legislator through the advise of the 2^nd Respondent.

"17. A declaration be made that under section 2 of the Districts and Provinces Act 1992 only 46 districts named under schedule II of the Districts and Provinces Act should be recognized and be allocated resources under the National budget."

Excerpts from the Court while making its ruling, include:

"Section 123 (I) of the Constitution  defines a district to mean “one of the districts into which Kenya is divided in the manner prescribed by an Act of Parliament.”

"Creation of any district has to be done in conformity with the Constitution of Kenya and the Districts and Provinces Act, 1992. Appropriate legislation must first be in place before any district is created. A district is an important administrative and political region to the extent that it is recognized by the Constitution and any variation of its boundaries must be done with total adherence to the relevant law.

"The power to create districts, review or vary boundaries of districts is exclusively vested in parliament. Section 41 C (b) of the Constitution of Kenya is clear on the issue."

At that time, the boundaries commission was known as the Interim Independent Boundaries Review Commissio IIBRC. Speaking on the role of this Commission in the delineation of boundaries, the Court noted:

"It would be a mockery of our country’s Constitution for the executive to sidestep the I.I.B.R.C. and Parliament to create any new district.  In our nascent democracy, the Constitutional concept of separation of powers must be respected so that all the arms of Government operate and function in accordance with the law."

There was no appeal on the ruling, effectively putting a stop to gerrymandering on District boundaries by the Executive.

Provincial Administration

The status quo has remained despite the ruling by the Court, perhaps partly because of the enormity of its enforcement and also the fact that the country was in the final stages of a constitutional review that pointed to the establishment of 47 Counties. Decentralised operations such as budget allocations, as well as structures of government have continued to be implemented under the District unit of reference, however. Hence District Commissioners remain in office and are expected to be replaced after the 2013 General Election under the New Constitution adopted in August 2010.

References:

1. Job Nyasimi Momanyi & 2 others v AG & another [2009] eKLR, Constitutional Application 68 of 2009 in the High Court in Kisii. National Council for Law Reporting. The Attorney General. 

2. Constitution of Kenya Revised Edition 2008 (2001). National Council for Law Reporting. The Attorney General.

3. Kenya National Assembly Official Record (Hansard). Google books. National Assembly of the Republic of Kenya.