This is the Last and Thrid part of my comments to the Constitutional Committee of Experts on the Harmonized Draft Constitution. See Part 1 and 2 below.
Representation in a Devolved System
The harmonized draft constitution proposes a three tier devolution system. I have no quarrels with that. Devolution is viewed in many countries as a way to dampen regional, racial, ethnic, or religious cleavages, particularly in multiethnic societies. These should be desirable results in Kenya. That being so the costs of devolution should not be viewed as unnecessary burden to the economy.
The establishment of a bi-camel legislature is good for ensuring democratic balance between majority rule and minority rights. The lower house safeguarding majority rule principle and the Senate protecting minority rights and regional interests. To achieve these results representation in both houses must, however, comply with some basic standards of boundary delimitation: impartiality of boundary authority, equality of voting strength, representativeness in drawing constituencies, non-discrimination by avoiding boundary manipulation, and transparency. While Article 113 of the draft provides for the standards, delimitations of regions and counties in First Schedule and Article 5 (2) seem arbitrary especially when representation in the Senate and Regional Assemblies are based on the number of regions and counties. The principle of equality may not have been complied with especially as regarding the county level. The populations of some of the counties may be too large such that equality of voting strength is not respected.
Similarly, equality principle in representation in the National Assembly should be adhered to in order to make majority rule meaningful. There are perceptions that the way current constituencies are drawn does not comply with the principle of equal representation. The populations of constituencies are not equally divided so as to provide voters with equality of voting strength. In my opinion the representation in both houses should be seen to be fair so as to make devolution meaningful. The people should feel adequately represented at all level of devolution and not circumvented.
Finally, thorough proofreading should be done to the final draft so as to avoid some obvious errors such as in Article 125 (3). The reference to Article 141 (2) (a) does not correspond with the contents of this Article.