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AND
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
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.
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.
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:
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.
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.
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
The following facts, among others, are notable from the above table:-
b. Whereas Nairobi has over 300,000 voters more than Coast Province
the later has six counties to Nairobi’s one.
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.
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.
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.
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.
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.