REPUBLIC OF KENYA

IN THE INTERIM INDEPENDENT CONSTITUTIONAL DISPUTE RESOLUTION

COURT AT NAIROBI
IN THE MATTER OF ALLEGED CONTRAVENTION OF SECTIONS 1, 1A, 3, 9,
15A, 23, 24, 30, 41, 41A, 41B, 46, 47, 47A, 59, 62, 75, 77, 78, 82, 108,
110, 123 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ALLEGED CONTRAVENTIONS OF SECTIONS 3, 4, 6, 23,

24, 30, 32, 33 AND 34 OF THE CONSTITUTION OF KENYA REVIEW
COMMISSION ACT, 2008 (ACT NO. 9 OF 2008)

CONSTITUTIONAL PETITION NO. 5 OF 2010

BETWEEN
ALICE WAITHERA MWAURA }
CONSOLATA WANJIRU MUCUKA }
PAULINA WAMBUI NJUGUNA }
MARGARET NJERI GAKIO }
BENINA KAWIRA NJERU }
BELTA KALONDU MUTUKU } PETITIONERS
PETER NDIRANGU KARIUKI }
JOHN MAINA }
STEPHEN OKINDA }
RONALD ONZERE }
JAMES KIIRU NDERITU }
JOHN MBURU KIARIE }
SUSAN NYAGULUI }

VERSUS

THE COMMITTEE OF EXPERTS 1ST

RESPONDENT
THE HON. ATTORNEY GENERAL 2ND RESPONDENT
THE INTERIM INDEPENDENT ELECTORAL COMMISSION 3RD
RESPONDENT

SUPPLEMENTARY VERIFYING AFFIDAVIT

I, Alice Waithera Mwaura, a resident of Eastleigh and of Post office Box

No. 20430-00200 Nairobi in the Republic of Kenya do hereby solemnly make
oath and state as follows.

1. THAT I am the first Petitioner herein and I have the authority and express
consent of my co-Petitioners to swear this affidavit on their behalf.

2. THAT pursuant to the leave given to the Petitioners by this Honourable

Court on 14th July, 2010 I wish to state as follows.
3. THAT under Sections 5 and 123 of the Constitution, Nairobi is one of
Kenya’s eight provinces. However, whereas under the Districts and
Provinces Act, 1992, Nairobi is the only Province of Kenya which is not
divided into districts, by the time that the CoE published the Harmonized
Draft Constitution (HDC) on 17th November, 2009, Nairobi had eight
Districts namely, Embakasi, Kasarani, Starehe, Makadara, Kamukunji,
Langata, Dagoretti and Westlands. Significantly the National
Constitutional Conference meeting at Bomas of Kenya in 2003-2004
recognized that Nairobi had four Districts namely Westlands, Langata,
Kasarani and Embakasi.

4. THAT I believe the first and second Respondents have no statutory power
to propose division of Kenya into Counties at all and more specifically that
do not cater for the special status of Nairobi Province.

5. THAT since the year 2003 constituencies have become the principal unit
for allocation of public resources with the consequences that Districts and
Provinces with disproportionate population vis-à-vis constituencies end up
getting a raw deal that only serves to compound poverty and economic
marginalization of people living in those areas.

6. THAT my co-Petitioners and I are aware that under the Proposed

Constitution of Kenya (PCK) published on 6th May, 2010 the proposed 47
Counties will also become units for allocation of public resources and so
the one County status of Nairobi can only aggravate the current injustice
wrought upon Nairobians in resource allocation as we demonstrate below.

7. THAT under Section 42 of the Constitution, Nairobi has eight

Constituencies all of which rank among Kenya’s most populous in voting
power. The said constituencies are eight of the 210 constituencies
prescribed by an order of the Electoral Commission of Kenya, under
Section 42 of the Constitution. Annexed hereto marked “AWM1” is a true
copy the current Parliamentary Constituencies Review Order made on 20 th
September, 1996 vide Legal Notice No. 298 of 1996 and published in a
special issue of the Kenya Gazette Supplement No. 54 dated 23 rd
September 1996.

8. THAT upon being advised by the applicants’ advocates Messrs. Kinoti &
Kibe and I earnestly believe that the division of Kenya into 210
Constituencies vide Legal Notice No. 298 of 1996 is contrary to and in
serious breach of section 42 of the Constitution in that:

i. The relative differences between the 25 largest constituencies

and 25 smallest constituencies in Kenya are so big as to derogate
the cardinal principal under section 42(3) of the Constitution that all
constituencies shall contain as nearly equal numbers of inhabitants.

ii. A constitutional bench of the High Court has already held in

Nairobi High Court Misc. Application No. 975 of 2001 Hon.
 John N. Michuki & Another vs. Hon. Attorney General and 2
Others that the Electoral Commission of Kenya, should address the
imbalance in parliamentary representation in which some
constituencies have more than 100,000 voters and others with less
than 10,000 voters.

9. THAT I believe one of the objectives of the constitutional review process

was to redress the injustices adverted to above in allocation of political
power and in this regard the previous draft constitutions attempted to do
so.

10. THAT in June, 2009 the second Respondent identified three contentious
issues one of which was devolution of powers. Annexed hereto marked
“AWM2” is a true copy of the write-up by the Second Respondent
published in June, 2009 on the said contentious issues.

11. THAT after submissions on the said contentious issues the CoE published
the HDC on 17th November, 2010 under which Nairobi Province was
divided into four Counties namely Westlands, Kasarani, Langata and
Embakasi. However, the said Counties are not among the 47 Counties
under the PCK published on 6th May, 2010 partly due to subsequent
political bargains in which – for obvious reasons of its marginalized
political status – Nairobi’s interests were once again compromised to the
detriment of its inhabitants including my co-Petitioners and I.

12. THAT pursuant to its mandate to compile a new voters register on 21 st

May, 2010 the third Respondent – Interim Independent Electoral
Commission (IIEC) – issued regional voter registration statistics from
which the number of voters per province and the proposed 47 counties is
ascertainable. Annexed hereto marked “AWM3” is a true copy the said
statistics at close of voters registration on 21st May, 2010.

13. THAT according to parliamentary records between the years 2003 and
2010 the Government of Kenya has allocated the 210 Constituencies a
total sum of Kshs 55,010,900,946 for use in various poverty alleviation
and development projects. Annexed hereto marked “AWM4” is a true
copy of a schedule showing the constituencies allocations for financial
years 2003/2004 upto 2009/2010.

14. THAT according to statistics and schedule referred to above there is a

compelling nexus between political representation and allocation of public
resources and the trend is wont to continue if the PCK is ratified during
the Referendum scheduled for 4th August, 2010.

15. THAT the allocation of Counties under Schedule 1 of the PCK is not only
arbitrary and illegal but also likely to worsen Nairobi’s political
marginalization as shown in Table A below.
TABLE A: PROVINCIAL ALLOCATION OF CONSTITUENCIES & COUNTIES
VIS-À-VIS REGISTERED VOTERS

PROVINCE NO. OF NO. OF CONSTITUENCIES

COUNTIES REGISTERED 2010
Schedule 1 – VOTERS
Proposed IIEC May 2010
Constitution
of Kenya
Nairobi 1 1,306,345 8
Coast 6 992,323 21
North Eastern 3 232,099 11
Nyanza 6 1,711,745 32
Western 4 1,357,802 24
Rift Valley 14 3,074,736 49
Central 5 1,952,537 29
Eastern 8 2,028,864 36
Total 47 12,656,451 210

The following facts, among others, are notable from the above table:-

a. Nairobi is the only Province with only one County.

b. Whereas Nairobi has over 300,000 voters more than Coast Province
the later has six counties to Nairobi’s one.

c. Cumulatively Eastern, Central and Nairobi Provinces have 5,287,746

voters with 14 counties the same number as Rift Valley Province with
3,074,736 voters.

d. Both Nyanza and Coast Provinces have six counties each but Nyanza
has over 80% more voters than Coast.

e. Whereas Western Province has over 4 times more voters than North
Eastern Province, the former has only one more county.

f. Western, Eastern, Central and Nairobi Provinces combined have

6,645,548 voters with 18 Counties, meaning that 52.5 per cent of
voters will have only 38.30 per cent of Counties.

16. THAT the political marginalization of Nairobi Province is starker when we

compare the voters population in the highly populous proposed Counties
compared to lowly populated Counties as illustrated in Table B below.

TABLE B: COMPARATIVE VOTER POLULATION IN SELECT COUNTIES

VIS-À-VIS CONSTITUENCY ALLOCATION

HIGHLY POPULATED COUNTIES LOWLY POPULATED COUNTIES

 NAME NUMBER OF NO. OF NAME NO. OF NO. OF
REGISTERED CONSTITUENCIE REGISTERE CONSTITUENCIES
VOTERS S D VOTERS 2010
2010
Nairobi 1,306,345 8

Nakuru 598,401 6 Baringo 168,044 5

Uasin 300,895 3 West 114,555 3
Gishu 321,448 5 Pokot
Kericho
Kiambu 693,266 8
Muranga 426,590 7
Nyeri 345,715 6

Machakos 413,437 6 Isiolo 45,348 2

Meru 405,209 7 Marsabit 86,903 4
Kitui 320,199 6

Mombasa 322,326 4 Tana 68,536 3

River 38,038 2
Lamu 110,073 4
Taita 162,408 3
Taveta
Kwale
Bungoma 393,601 6
Kakamega 544,318 9

Kisii 375,277 7

Kisumu 335,481 6

The following facts are notable from analysis of the figures in the above
table:

a. Whereas the Kiambu County with 693,266 voters has eight (8)
Constituencies whilst Taita Taveta with four (4) constituencies has only
110,073 voters which means Kiambu County has over 6 times the
number of voters as Taita Taveta but has only twice the number of
Constituencies.

b. The combined population of proposed Bungoma and Kakamega

Counties stands at 937,919 with fifteen (15) Constituencies whilst the
combined population of all the eight lowly populated Counties in the
above table is 793,905 and have 26 Constituencies.

c. Whereas the proposed Kisii County with 375,277 voters has seven
constituencies, Tana River, Lamu, Taita Taveta and Kwale Counties in
Coast Province with 379,055 voters have 12 Constituencies.
 d. Whereas Nairobi County with 1,306,345 voters has 8 Constituencies,
the combined number of voters in the 8 Counties in the above table is
793,905 voters spread in 26 Constituencies.

e. The disparity between the number of voters and allocation of

Constituencies is manifest among urban areas (Counties) and rural
areas (Counties). As illustration note this: In the first place both
Nairobi Province and Mombasa District fall under the category of Urban
Counties and whilst the former has 1,306,345 voters with 8
Constituencies, the latter has 322,326 voters in 4 Constituencies. Thus
whilst Nairobi has over 4 times as many voters as Mombasa, it has only
twice as many Constituencies. Secondly, both Kiambu and Kisumu
Districts are rural Counties but Kiambu with 693,266 voters has 8
Constituencies but Kisumu with 335,481 voters has 6 Constituencies.
Thus Kiambu has over two times as many voters as Kisumu but with
only 25 per cent more Constituencies.

17. THAT the inexorable consequence of the skewed allocation of electoral or

political units is that some of the highly populated areas, and Nairobi is
the most remarkable, are gravely prejudiced in resource allocation. This
deposition is attested by an analysis of the CDF allocation statistics vis-à-
vis the number of registered voters as at 21st May, 2010 which is set out
in Table C below.

TABLE C: CONSTITUENCY DEVELOPMENT FUND (CDF) ALLOCATIONS

AT PROVINCIAL LEVEL FROM 2003 TO 2010

PROVINCE REGISTERED NUMBER OF C.D.F C.D.F

VOTERS CONSTITUENCIES ALLOCATION ALLOCATION
2010 %
Nairobi 1,306,345 8 1,807,258,62 0.33
6
Coast 992,323 21 5,392,391,19 9.97
7
North 232,099 11 2,702,478,23 5.0
4
Eastern
Nyanza 1,711,745 32 8,928,348,59 16.51
5
Western 1,357,802 24 6,751,911,22 12.48
7
Rift Valley 3,074,736 49 12,854,734,0 23.76
00
Central 1,952,537 29 6,223,382,31 11.51
2
Eastern 2,028,864 36 9,431,166,28 17.44
1
Total 12,656,451 210 55,010,900, 100
946
The following facts among others are notable from the above table:-

a. Whereas Nairobi Province has approximately the same number of

voters as Western Province it has only received 0.33 per cent of the
total CDF allocation between 2003 to 2010 whilst Western has received
12.48 per cent.

b. Whereas Central Province has more registered voters than Nyanza

Province between 2003–2010 it received Kshs 6,223,382,312 (11.51%)
whilst Nyanza received Kshs 8,928,348,595 (16.51%) of the total CDF
allocation over the same period.

c. The combined number of voters for Eastern, Central and Nairobi

Provinces is 5,287,746 and between 2003 – 2010 they received Kshs
17,461,807,219 being 29.28% per cent of the total CDF allocation, Rift
Valley with 3,074,736 voters received Kshs 12,854,734,000 (23.76%).

18. THAT in view of the foregoing my co-Petitioners and I are wholly

convinced that the review process has totally failed to redress the
grievances that made us to file a constitutional application in the High
Court namely Petition No. 28 of 2007 Alice Waithira Mwaura &
Others –vs- Electoral Commission of Kenya & Another to challenge
the unfair political representation of Nairobi’s inhabitants. In the premises
we beseech the Honourable Court to grant the orders sought to ensure
that in the new constitutional dispensation such injustice would not be
permitted.

19. THAT upon being advised by the applicants’ advocates aforesaid which I
verily believe to be sound, I contend that the imbalances in constituency-
making under Section 42 of the Constitution results in discriminatory
allocation of public resources and exercise of the National Assembly’s
functions under Section 46, 47 and Part VI sections 94-105 of the
Constitution of Kenya. In particular the enactment of The Constituency
Development Fund Act, 2003 has resulted in discriminatory and
constitutionally unjustifiable allocation of public resources in that
constituencies with say 50,000 inhabitants are allocated more or less the
same amount of development funds with those having over 400,000
inhabitants. Given that under the PCK the proposed 47 Counties will be
resource allocation units my co-Petitioners and I are apprehensive that
the fundamentally unfair allocation of public resources in Kenya will be
worse thereby making a big mockery of the constitutional review process
and considering the struggle for a just society a mirage. In the premises,
we believe this state of affairs would defeat the cardinal objectives of the
clamour for a new Constitution.
20. THAT although the actual number of poor people in the heavily populated
constituencies is considerably greater than that in lightly populated
constituencies, purely on account of how constituencies are demarcated
the former end up being discriminated against in resources allocation and
this affects most of the heavily populated constituencies but no where is
the imbalance worse than in Nairobi Province’s eight Constituencies.

21. THAT upon being advised by the Petitioners advocates on record which
advice I verily believe is sound I believe the need to redress the patent
injustice adverted to above is all the more compelling in the backdrop of
three other provisions of the PCK. First, Section 27(4) of the Sixth
Schedule provides that the Boundaries Commission must ensure that the
first review of constituencies shall not result in the loss of a constituency
existing on the effective date it is clear that the allocation of the 80
additional constituencies will not cure the political discrimination of
Nairobi voters. Secondly, Nairobi province will continue to be
discriminated against in resource allocation because under Article 215 of
the PCK five out of the nine members of the Commission on Revenue
Allocation will be nominated by the political parties “represented in the
Senate according to their proportion of members in the Senate”. Thirdly,
under Article 188 the Boundaries of Counties will be virtually impossible to
change to the benefit of Nairobi as both the National Assembly and the
Senate – both in which Nairobi Province will be grossly under-represented
– must pass, with support of at least two thirds of respective members, a
resolution to alter boundaries of a County pursuant to a recommendation
of an independent commission set up for that purpose by Parliament. In
plain language, short of a political miracle, the boundaries of the
proposed 47 Counties under Schedule 1 may never be changed in the
foreseeable future, if ever. Accordingly this Honourable Court must avert
such political catastrophe to us by granting the orders sought herein.

22. THAT in view of the monumental political and economic import of

electoral or political units in modern day Kenya, I beseech this Honourable
Court not to permit the injustice of discriminatory resource allocation
based on skewed allocation of Constituencies and Counties to continue in
the new constitutional dispensation.

23. THAT I have sworn this affidavit in further support of the Verifying
Affidavit sworn on 12th July, 2010 to verify the Petition herein.

24. THAT what is deponed to herein is true to the best of my knowledge save
what is deponed to on information and belief sources whereof have been
disclosed.