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Electoral Process in Kenya

 By Emma Kinya.

1. INTRODUCTION

This paper studies the electoral process in Kenya. In so doing, it evaluates the functionality of Kenya’s electoral system by analysing the electoral process on the basis of its structure and general performance. It deploys some of the widely used indicators including: – electoral participation; party structure, organization, powers and numbers.[1]

Specifically, this paper analyses the body of political rights and the legal procedures that are designed to attain those rights in the context of Kenya’s legal framework. According to Black’s Law Dictionary, political rights are the rights that involve participation in the establishment or administration of a government.[2] These rights are usually held to:

  • entitle the adult citizen to exercise her right to franchise/vote
  • entitle a person to hold public office
  • to participate in other political activities.[8]

In scope, this paper covers – Kenya’s legislation on political rights and elections. The paper will analyse the essential components of elections law including: – the electoral body; voting rights; rights to holding political office; different political offices and qualifications of candidates ; structures and powers of political parties ; the strengths and weakness of Kenya’s electoral system ; and possible areas for reform.

 

2. LEGISLATION ON ELECTIONS

The following laws directly govern the electoral process in Kenya:-

a)      The Elections Act, 2011 ;

b)      The Election Laws (Amendment) Act, 2016.

c)      Elections Offenses Act, 2016.

d)     The Political Parties Act, 2011 ;

e)      The Independent Electoral and Boundaries Commission Act, 2011 ; and

f)       The Constitution of Kenya, 2010.

The Constitution of Kenya, 2010.

The Constitution establishes the electoral body.[4] It has also provided for political rights [5] and means for redress where those rights are violated.[6] The Constitution further grants authority to Parliament to enact substantive legislation governing the electoral process in Kenya.[7] The Constitution provides that Parliament shall enact legislation to provide for:

the delimitation by the IEBC of electoral units for election of Members of the National Assembly and County Assemblies; the nomination of candidates; registration of voters; the conduct of elections and referenda; and the progressive registration of citizens residing outside Kenya.[8] Pursuant to the above requirement, the following Acts have been enacted to govern the electoral system in Kenya :- The Constitution of Kenya 2010 ; The Elections Act, 2011 ; The Political Parties Act, 2011  and The Independent Electoral and Boundaries Commission Act, 2011.[9] These statutes will be discussed later in detail.

 

3. THE ELECTORAL BODY (IEBC).

i. Establishment of the IEBC

The IEBC is the electoral body in Kenya.[10]It is established under article 88 (1) of the Constitution.[11] The Constitution provides that the Commission is responsible for conducting or supervising referenda and elections to any elective body or office established under the Constitution and any other elections as prescribed by an Act of Parliament.[12]

ii. Functions of the IEBC

Generally, the Commission is responsible for conducting or supervising referenda and elections.[13] The Constitution further provides for specific functions of the commission as :-  continuous registration of citizens as voters; regular revision of the voters’ roll; delimitation of constituencies and wards; the regulation of the process by which parties nominate candidates for elections; the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results; the registration of candidates for election; voter education; the facilitation of the observation, monitoring and evaluation of elections; the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election; the development of a code of conduct for candidates and parties contesting elections; and the monitoring of compliance with the legislation required by Article 82(1)(b) .i.e. legislation on nomination of candidates by parties.[14]

iii. Composition and appointment of commissioners

The IEBC Act provides that the Commission shall consist of a chairperson and eight (8) other members.[15] The procedure for appointment of chairperson and members of the Commission shall be in accordance with the procedure set out in the First Schedule.[16] The Schedule requires the President to appoint a Selection Panel[17] which shall invite applications and publish names of all applicants.[18] The Panel is then required to consider the applications, shortlist and interview the applicants.[19]

After the interviews, the Selection Panel is required to select three persons qualified to be appointed as chairperson and thirteen persons qualified to be appointed as members of the Commission and forward these names to the President for nomination of one person for appointment as the chairperson and eight persons for appointment as members. The President is then required to forward the list to the National Assembly for approval. [20] Upon consideration and approval, the National Assembly forwards the names to the President for appointment.[21]

The Constitution provides that a person is not eligible for appointment as a member of the Commission if the person has, at any time within the preceding five years, held office, or stood for election as:- a Member of Parliament or of a County Assembly; or a member of the governing body of a political party; or holds any State office.[22] A member of the Commission shall not hold another public office.[23]

iv. Code of Conduct for members and staff of the Commission

The Constitution provides that in every election, all candidates and all political parties shall comply with the code of conduct prescribed by the Independent Electoral and Boundaries Commission.[24] The Fourth Schedule to the IEBC Act contains the Code of Conduct for members and staff of the Commission.[25] This schedule also applies to referenda as well.[26] The Code is fairly comprehensive. It does not only serve to strengthen the professionalism of employees of the IEBC but also creates obligations to political parties and referendum committee officials and candidates to adhere to the values and principles of the Constitution.[27] The Code requires the Commission’s employees to conduct themselves with integrity and neutrality. [28]The Fourth Schedule also lays emphasis on the professionalism of the members of the Commission. All members are expected to perform their duties in a manner that maintains public confidence and to discharge their duties in a professional and efficient manner and respect the rights and freedoms of all persons.[29]

The Schedule also prescribes and dictates a comprehensive Code that the members and employees of the Commission ought to adhere to.[30]The ethics and integrity standards stipulated include: – independence of members, professionalism, disclosure of conflicting interests, improper enrichment, Integrity in private affairs, no sexual harassment, and no nepotism among other standards.[31] In addition to the above standards, the provisions of the Public Officers Ethics Act shall also apply.[32]

v. Financing of the commission

The IEBC is funded by the Government through parliament under an independent budget that is no longer tied to the Ministry of Finance. Parliament is under the duty to allocate adequate funds to enable the Commission to perform its functions.[33] Other funds of the Commission consist of other monies such as grants, gifts, donations or other endowments given to the Commission.[34]

vi. Accountability of the Commission

The IEBC is required to observe all reporting procedures on its operations as well as financial regulations and accounting procedures in the management of its funds. The Commission in this respect is required to present its annual report to the President and submit the same to Parliament within three months after the end of each year.[35] The annual report shall contain the financial statements of the Commission, the activities the Commission has undertaken and any other information the Commission may consider relevant. [36]

 

 

4. PARTICIPATION IN THE ELECTORAL PROCESS

The Constitution grants 4 cadres of rights to participate in the electoral process.[37]These rights include:-

  • Right to be registered as a voter;
  • Right to vote by secret ballot in any election or referendum;
  • Right to be a candidate and if elected, right to hold a public office; and
  • Right to join and participate in a political party.

The right to join and participate in a political party will be discussed later in this paper.

a) Right to be registered as a voter

The Constitution provides that every adult citizen has the right to be registered as a voter without unreasonable restrictions.[38] It further provides that a person qualifies for registration as a voter at elections or referenda if the person:-  is an adult citizen; is of sound mind; and has not been convicted of an election offence during the preceding five years.[39]

The constitutional right to be registered as a voter is also recognized in the Elections Act which provides that – ‘any citizen of Kenya who has attained the age of eighteen years as evidenced by either a national identity card or a Kenyan passport and whose name is not in the register of voters shall be registered as a voter upon application in the prescribed manner to the Commission.’[40] This right to be registered as a voter also extends to a person who has registered for an identification card and has an acknowledgement of registration certificate as proof of such registration. 41[]

The registration process

i. Application process

A person who qualifies to be registered under section 5 of the Elections Act shall make an application in the prescribed manner to the Commission.[42] All applicants for registration shall be registered in the appropriate register by the registration officer[43] who shall transmit the information relating to the registration of the voter to the Commission for inclusion in the Principal Register of voters.[44] The Constitution states that a citizen who qualifies for registration as a voter shall be registered at only one registration center.[45]

ii. Transfer of registration process (where a person is already registered as a voter).

A voter who wishes to transfer his registration from the area he registered in to another electoral area, the voter shall notify the Commission in the prescribed manner in not less than ninety days preceding an election.[46] Upon receipt of the notification above, the Commission shall transfer the voter’s registration particulars to the register of the preferred Constituency in not later than sixty days preceding the election.[47]

iii. Inspection of register of voters

The Act mandates the Commission to open the Principal Register of Voters for inspection for a period of at least fourteen days or such period as the Commission may consider necessary within sixty days from the date of the notice for a general election.[48]

iv. Compilation process

It is the duty of the Commission to compile and maintain the Principal Register of Voters referred to above. [49]This register shall comprise of: – a poll register in respect of every polling station; a ward register in respect of every ward; a constituency register in respect of every constituency; a county register in respect of every county; and a register of voters residing outside Kenya.[50] The compilation done by the Commission includes the amendments to the register of voters done after the inspection of the register.[51]

v. Claims where a person’s name is not in the register

The Constitution provides that administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election.[52] To effectuate the above constitutional provision, the Elections Act provides that where a person has applied to be registered as a voter but his name has not been included in the register of voters, he may submit a claim to the registration officer in the prescribed form, manner and time for his name to be included in the register.[53]

b)   Right to vote

The Constitution provides that every adult citizen has the right to vote by secret ballot in any election or referendum.[54] The Elections Act accentuates this constitutional right by providing for the legal framework for exercising the right.[55]  The Act states that- an adult citizen shall exercise the right to vote specified in Article 38(3) of the Constitution in accordance with the Elections Act and where such citizen is registered in the Principal Register of Voters.[56] Indeed, the preamble of the Elections Act states that it is an Act of Parliament to provide for the conduct of elections to the office of the President, the National Assembly, the Senate, county governor and county assembly; to provide for the conduct of referenda; to provide for election dispute resolution and for connected purposes. This section will cover the 3 broad aims of the Act including:- conduct of elections; conduct of referenda;  and election dispute resolution.

i. Conduct of elections to the office of the President, the National Assembly, the Senate, county governor and county assembly

Conduct of elections generally

The electoral system shall comply with the following principles:- freedom of citizens to exercise their political rights under Article 38; not more than two-thirds of the members of elective public bodies shall be of the same gender; fair representation of persons with disabilities; universal suffrage based on the aspiration for fair representation and equality of vote; and free and fair elections, which are – by secret ballot;  free from violence, intimidation, improper influence or corruption; conducted by an independent body; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner.[57]

At every election, the Independent Electoral and Boundaries Commission is mandated to ensure that whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent; the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station; the results from the polling stations are openly and accurately collated and promptly announced by the returning officer ; and appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.[58]

On the date of elections, the Constitution provides that a general election of members of Parliament shall be held on the second Tuesday in August in every fifth year.[59] An election of the President shall be held on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.[60] Elections for a County Assembly member shall also be done on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.[61] The County Governor shall also be directly elected by the voters registered in the County, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.[62]

Elections to the office of the President

The President shall be elected by registered voters in a national election conducted in accordance with this Constitution and any Act of Parliament regulating presidential elections.[63] Presidential elections shall be held on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year.[64]

In case of a presidential election, the Commission shall initiate the process of such an election by publishing a notice in the Gazette and in electronic and print media of national circulation.[65]

  • Qualifications and disqualifications for election as President.

A person qualifies for nomination as a presidential candidate if the person  is a citizen by birth; is qualified to stand for election as a member of Parliament; is nominated by a political party, or is an independent candidate; and is nominated by not fewer than two thousand voters from each of a majority of the Counties.[66] A person is not qualified for nomination as a presidential candidate if the person: – owes allegiance to a foreign state; or is a public officer, or is acting in any State or other public office.[67] The President, Deputy President or members of Parliament are not disqualified for nominations.[68]

  • Procedure at presidential election.

Where only one candidate for President is nominated, that candidate shall be declared elected.[69] If two or more candidates for the Presidential position are nominated, an election shall be held in each constituency.[70] The poll in a presidential election shall be taken by secret ballot.[71] After counting the votes in the polling stations, the IEBC shall tally and verify the count and declare the result.[72] A candidate shall be declared elected as President if the candidate receives more than half of all the votes cast in the election; and at least twenty-five per cent of the votes cast in each of more than half of the counties.[73]

If no candidate is elected, a fresh election shall be held within thirty days after the previous election and in that fresh election the only candidates shall be the candidate(s) who received the greatest number of votes; and the candidate(s) who received the second greatest number of votes.[74]The candidate who receives the most votes in the fresh election shall be declared elected as President.[75]

  • Cancellation of presidential elections

A presidential election shall be cancelled and a new election held in 3 scenarios, where:-  no person has been nominated as a candidate before the expiry of the period set for the delivery of nominations;  a candidate for election as President or Deputy President dies on or before the scheduled election date; or a candidate who would have been entitled to be declared elected as President, dies before being declared elected as President.[76] In this case, a new presidential election shall be held within sixty days after the date set for the previous presidential election.[77]

  • Death before assuming office.

If a President-elect dies after being declared elected as President, but before assuming office, the Deputy President-elect shall be sworn in as acting President on the date on which the President-elect would otherwise have been sworn in.[78] Consequently, a fresh election to the office of President shall be held within sixty days after the death of the President-elect.[79]

  • Declaration of results of presidential elections

After counting the votes in the polling stations, the IEBC shall tally and verify the count.[80] Within seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall declare the result of the election.[81] A candidate shall be declared elected as President if the candidate receives more than half of all the votes cast in the election and at least twenty-five per cent of the votes cast in each of more than half of the counties.[82] After the declaration of the result, the chairperson of the IEBC shall deliver a written notification of the result to the Chief Justice and the incumbent President.[83]

  • Assumption of office of President.

The President-elect shall be sworn in on the first Tuesday following the fourteenth day after the date of the declaration of the result of the presidential election, if no petition has been filed in the Supreme Court to challenge the election of the President-elect.[84] Where a petition has been filed, it shall be on the first Tuesday following the date on which the Court renders a decision declaring the election to be valid.[85]The swearing in shall be in public before the Chief Justice, in the absence of the Chief Justice, the Deputy Chief Justice.[86]

The President-elect assumes office by taking and subscribing the oath or affirmation of allegiance and the oath or affirmation for the execution of the functions of office as prescribed in the Third Schedule.[87] Parliament was mandated to enact legislation to provide for the procedure and ceremony for the swearing-in of a President-elect.[88] In accordance with this provision, the Assumption of the Office of President Act was enacted.[89]

The preamble of this Act states that it is an Act of Parliament to provide for the procedure and ceremony for the assumption of the Office of President by the President-elect, in accordance with Article 141 of the Constitution and for connected purposes.[90] This Act establishes the Assumption of the Office of President Committee.[91] The functions of the Committee shall be to :- facilitate the handing over process by the outgoing President to the President-elect; organise for the security of the President-elect; organise for the necessary facilities and personnel for the President elect; co-ordinate the briefings of the President-elect by relevant public officers;  facilitate communication between the outgoing President and the President-elect; prepare the programme and organise for the swearing in ceremony; and carry out any other activity necessary for the performance of its functions under this Act and perform any other function assigned to it under any other written law.[92] The Committee shall publish, by notice in the Gazette, the date and place for the conduct of the swearing-in ceremony which shall be conducted in a public ceremony held in the capital city.[93] The committee shall also organize security detail[94]and ensure that the President-elect receives security briefings from the respective national security organs.[95]

Elections to the office of the National Assembly

There shall be 290 (two hundred and ninety) Constituencies for the purposes of the election of the members of the National Assembly provided for in Article 97 (1) (a).[96] Twelve members shall be nominated by parliamentary political parties to represent special interests including the youth, persons with disabilities and workers.[97] This shall be done on the basis of proportional representation by use of party lists.[98]

A person is eligible for election as a Member of Parliament if the person:- is registered as a voter; satisfies any educational, moral and ethical requirements prescribed by this Constitution or by an Act of Parliament; and is nominated by a political party, or is an independent candidate is supported by at least one thousand registered voters in the constituency.[99]

A person is disqualified from being elected a Member of Parliament if the person is :- a State officer or a public officer other than a Member of Parliament; has held office as a member of the IEBC at any time within the five years immediately preceding the date of election; has not been a citizen of Kenya for at least the ten years immediately preceding the date of election; is a Member of a County Assembly; is of unsound mind; is an un-discharged bankrupt; is subject to a sentence of imprisonment of at least six months, as at the date of registration as a candidate, or at the date of election; or is found, in accordance with any law, to have misused or abused a State office or public office or in any way to have contravened Chapter Six.[100]

A general election of Members of Parliament shall be held on the second Tuesday in August in every fifth year.101[]

Elections to the Office of the Senate

The Senate consists of forty seven(47) members each elected by the registered voters of the counties.[102] Each county shall constitute a single member Constituency.[103] Sixteen women members shall also be nominated by political parties on the basis of proportional representation by use of party lists.[104] The Senate shall also consist of two members (one man and one woman) representing the youth.[105] In addition, two other members (one man and one woman) shall be members of the Senate as representatives of persons with disabilities.[106] The Speaker who shall be an ex officio member is also a member of the senate.[107] Similar to the nomination of the sixteen women members of the senate, [108]the nominations of representatives of the youth and persons with disabilities shall also be done by political parties on the basis of proportional representation by use of party lists.[109]

Elections of County Assembly Member

A person is eligible for election as a member of a county assembly if the person is:- registered as a voter; satisfies any educational, moral and ethical requirements prescribed by the Constitution or an Act of Parliament; and is either nominated by a political party; or is an independent candidate supported by at least five hundred registered voters in the ward concerned.[110]

A person is disqualified from being elected as a Member of a County Assembly if the person:- is a State officer or any other public officer other than a Member of the County Assembly; has held office as a member of the IEBC at any time within the five years immediately before the date of election; has not been a citizen of Kenya for at least the ten years immediately preceding the date of election; is of unsound mind; is an un-discharged bankrupt; is serving a sentence of imprisonment of at least six months; or has been found, in accordance with any law, to have misused or abused a State office or public office or to have contravened Chapter Six.[111]

A County Assembly consists of members elected by the registered voters of the wards.[112] Each ward constitutes a single member constituency.[113] Elections of County Assembly shall be on the second Tuesday in August in every fifth year.[114] A County Assembly shall also consist of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly is of the same gender.[115] A County Assembly shall also consist of members of marginalized groups including persons with disabilities and the youth as prescribed by an Act of Parliament.[116] The nominations of persons to effect gender balance and the representatives of the youth and persons with disabilities shall be done by political parties in proportion to the seats received in that election in that county by each political party.[117]

Election of County Governor and deputy county governor.

The County Governor shall be directly elected by the voters registered in the County.[118] The day of elections shall be the second Tuesday in August in every fifth year.[119] To be eligible for election as County Governor, a person must be eligible for election as a member of the County Assembly.[120] If only one candidate for County Governor is nominated, that candidate shall be declared elected.[121] Where two or more candidates are nominated, an election shall be held in the County and the candidate who receives the greatest number of votes shall be declared elected.[122]

Each candidate for election as County Governor shall nominate a person who is qualified for nomination for election as County Governor as a candidate for Deputy Governor.[123] The IEBC shall declare the candidate nominated as the deputy governor to have been elected as the deputy governor.[124] A person shall hold office as a County Governor for a maximum of only two terms.[125]

Independent candidate – for posts of president, National Assembly, Senate, County Governor and member of County Assembly

In addition to the other specific requirements for each elective position, any person is eligible to vie as an independent candidate for election if the person is: – not a member of a registered political party; has not been a member for at least three months immediately before the date of the election; and satisfies the below requirements specific to the office which he seeks.[126]

Where a person is not nominated by a political party, he may qualify for election as President, Member of Parliament, or member of county assembly.[127] For presidential elections, a person is qualified to be elected as an independent candidate if he is nominated by not fewer than two thousand voters from each of a majority of the counties.[128]For parliamentary elections, a person is qualified to run as an independent candidate if he is supported by at least one thousand registered voters in the constituency.[129] A person is qualified to run for elections to the office of the senate as an independent candidate if he is supported by at least two thousand registered voters in the county.[130] An independent candidate is eligible for election as a Member of a County Assembly if the person is supported by at least five hundred registered voters in the ward concerned.[131]

ii. Other election processes

Tallying of votes

The Constitution provides that at every election, the IEBC shall ensure that the results from the polling stations are openly and accurately collated and promptly announced by the returning officer.[132]It also provides that in a presidential election, after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result.[133] The Elections Act provided that before  determining  and  declaring  the  final  results  of  an  election  the  Commission  may  announce  the  provisional  results.[134] The Elections Act also provided that the Commission shall announce the provisional and final results in the order in which the tallying of the results is completed.[135]

In Maina Kiai & 2 others v Independent Electoral and Boundaries Commission & 2 others,[137] one of the issues before the court was: – whether section 39(2) and (3) of the Elections Act together with Regulations 83(2), 84(1) and 87(2)(c) of the Elections (General) Regulations 2012 were contrary to the provisions of Articles 86 and 138(2) of the Constitution.[137] The Court held that section 39(2) and (3) of the Elections Act were contrary to articles 86 and 138(2) of the Constitution.[138] In a nutshell, the Court held that the results certified by the returning officer for each presidential candidate with regard to that constituency were final and could only be challenged in the Supreme Court in an election petition.[139] Tallying of votes shall thus be effected at the constituency polling station.

Right of recall

The electorate has the right to recall a Member of Parliament or Senate representing their constituency before the end of the term of the relevant House of Parliament.[140] The Elections Act provides for the substantive and procedural law in exercising the constitutional right of recall under article 104.[141] The Act states that  a member of Parliament may be recalled where the member is found( upon a judgment or finding by the High Court)[142] to have violated the provisions of Chapter Six of the Constitution;) is  found to  have  mismanaged  public resources; is convicted of an offence under the Elections Act.[143]

A recall shall only  be  initiated  twenty-four  months after the election of the member of Parliament and not later than twelve months immediately preceding the next general election.[144] A recall petition shall not be filed against a Member of Parliament more than once during the term of that Member in Parliament.[145] A person who unsuccessfully contested an election under this Act shall not be eligible, directly or indirectly, to initiate a petition under this section.[146]

iii. Conduct of referenda

Referenda generally

The mode of voting in a referendum shall be by secret ballot. The Constitution provides that every adult citizen has the right, without unreasonable restrictions to vote by secret ballot in any election or referendum.[147] A person qualifies for registration as a voter at referenda if the person is: an adult citizen; is not declared to be of unsound mind; and has not been convicted of an election offence during the preceding five years.[148] The Constitution provides that parliament shall enact legislation to provide for the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda.[149]

Subject matter of a referendum

The Constitution provides that a proposed amendment to the Constitution shall be approved by a referendum if the amendment relates to any of the following matters : the supremacy of this Constitution; the territory of Kenya; the sovereignty of the people; the national values and principles of governance referred to in Article 10(2)(a) to (d); the Bill of Rights; the term of office of the President; the independence of the Judiciary and the Commissions and independent offices under Chapter Fifteen of the Constitution; the functions of Parliament; the objects, principles and structure of devolved Government; or the provisions of Chapter sixteen.[150]Amendment by popular initiative shall follow the procedure under art.257.[151] An amendment relating to a matter specified in Article 255(1) shall be submitted to the people in a referendum.[152]

Initiation of a referendum

The Elections Act provides that whenever necessary to hold a referendum on any issue, the President shall by notice refer the issue to the Commission for the purposes of conducting a referendum.[153] Following that reference, the Commission shall frame the question or questions to be determined during the referendum.[154] The Commission shall then, in consultation with the Speaker of the relevant House, lay the question as framed above before the House for approval by resolution.[155] The  National  Assembly  may then  approve  one  or  more  questions  for  a referendum.[156] The Commission shall publish the question approved in the Gazette and in the electronic and print media of national circulation.[157] The  Commission  may  assign  such  symbol  for  each  answer  to  the referendum question or questions as it may consider necessary.[158]Ultimately, the Commission shall conduct the referendum  within  ninety  days  of publication of the question.[159]

Voting threshold

A proposed amendment on the issues covered under article 255 of the Constitution shall be approved by a referendum if at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum[160] and where the amendment is supported by a simple majority of the citizens voting in the referendum.[]161

A referendum question on an issue other than that contemplated in Articles 255 and 256 of the Constitution shall be decided by a simple majority of the citizens voting in the referendum.[162]

Referendum dispute

The  conduct,  result  and  validity  of  a  referendum  may  be  challenged  by petition to the High Court.[163] Such a petition shall set out the facts relied on to invalidate the referendum; identify the specific matter or matters on which the petitioner relies as justifying the grant of relief;contain  a  request  for  the  relief  to  which  the  petitioner  claims  to  be entitled; and be filed in the High Court within twenty-one days of the publication of the notice of the results of the referendum in the Gazette.[164]

iv. Elections offenses & dispute resolution

Election offences

The Elections Offenses Act enumerates a number of election offenses[165]inter alia:- Offences relating to register of voters and voter’s cards ; Offences relating to multiple registrations as a voter ; Offences relating to voting ; Offences by members and staff of the Commission; Maintenance of secrecy at elections; Personation ;Treating; Undue influence; Bribery; use of force or violence during election period ; and use of national security organs.[166]

· Offences relating to register of voters

The Act provides that – a person, who without authority makes, prepares prints or is in possession of a document or paper purporting to be a register of voters ; or  knowingly makes any false statement on, or in connection with any application to be registered in any register of voters ; or aids,  abets,  counsels  or  procures  the  commission  of  or  attempts  to commit any of the offences commits an offence and is liable on conviction, to a fine not exceeding one million shillings and to imprisonment for a term not exceeding six years or to both.[167]

· Offences relating to multiple registrations as a voter

A person who applies to be re – registered in the same register of voters or in another register of voters ; or simultaneously  makes  two  or  more  applications  to  be  registered  as a voter ; or having been disqualified by an election court, applies to be registered as a voter commits an offence is liable on conviction, to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding one year or to both.[168] A person who commits such an offense shall not be eligible to vote in that election or in the next election.[169] A member or officer of the Commission or a person who aids double registration of a person commits an offence and is liable on conviction, to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding one year or to both.[170] A  candidate  who  aids  double registration of a  voter commits an offence and is liable on conviction, to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding one year or to both and shall not be eligible to contest in the ongoing general election.[171]

· Offences relating to voting

A person who forges, counterfeits, defaces or destroys any ballot paper or the official perforation, stamp or mark on any ballot paper commits an offence and is liable on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding six years or to both.[172]

· Offences by members and staff of the Commission

A member of the Commission, staff or other person who makes a false entry or record on a document which they are required to record or keep ; permits a person who can read and write to vote in a manner reserved for those who can’t;[173] permits  a non-visually impaired person to vote in the manner provided for persons who are visually impaired;[174] willfully prevents a qualified voter from voting at the polling station[175] ; willfully rejects a valid ballot paper[176]; willfully counts invalidly cast ballot paper[177] ; interferes with a voter in the casting of his vote in secret[178] ; fails to declare the results of an election under the law[179] ; without reasonable cause does or omits to do anything in breach of his official duty commits an offence and is liable on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.[180]

· Maintenance of secrecy at elections

The Elections Offences Act requires every officer, candidate or agent in attendance at a polling station to maintain and aid in maintaining the secrecy of the ballot;[181] The Act also forbids such an officer from communicating any  information  as  to  the  name  or  number of voters on  the register who has or has not applied for a ballot paper or who has voted at that station or as to the official mark except for a purpose authorized by law before the poll  is  closed.[182]

A person who contravenes these provisions on secrecy commits an offence and  is  liable  on  conviction,  to  a  fine  not  exceeding  one  million  shillings  or  to imprisonment for a term not exceeding three years or to both.[183]

· Offence of Personation

A person who applies  for  a  ballot  paper  in  the  name  of  another  person[184] ; votes again or applies at the same election for a ballot paper in his own name; votes with the knowledge that he is not entitled to vote in that election[185]; or presents himself as an election official knowing that he is not,[186] commits the offence of personation.187[] An offense of personation shall be cognizable.[188] A person who commits an offence of personation is liable on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.[189]

· Undue influence

A person who directly or indirectly threatens to use any force or violence for the purpose of inducing or compelling a person to vote or not to vote for a particular candidate or political party, commits an offence of undue influence.[190] Such a person is liable on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.[191]

· Bribery

A candidate who directly or indirectly offers a bribe to influence a voter to vote or refrain from voting for a particular candidate or political party commits the offence of bribery.[192] A person who commits the offence of bribery is liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.[193]

· Use of public resources

A candidate, referendum committee or other person shall not use public resources for the

purpose of campaigning during an election or a referendum.[194] A person who fails to comply with the provisions of this section commits an offence and is liable on conviction to a fine not exceeding two million shillings or imprisonment for a term not exceeding six years or to both.[195]

· Use of force or violence during election period

A person who by himself or through other person inflicts or threatens to inflict injury, damage, harm or loss on or against a person with intention to induce or compel that person to support a particular candidate or political party[196]; or to refrain from voting[197]commits an offence and is liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding five years or to both.[198]

· Use of national security organs

A  person  who  uses  a  public  officer or  the  national security organs to induce or compel any person to support a particular candidate or  political  party  commits  an  offence  and  is  liable  on  conviction  to  a  fine  not exceeding ten million shillings or to imprisonment for a term not exceeding six years or to both[199]

· Offences relating to the use of technology in elections.

A person who steals; or intentionally destroys; or alters any computer source code used for a computer, computer programme, computer system or computer network; with the intent to cause wrongful loss or damage to the public or any person, destroys or deletes or alters any information in the computer commits an offence and shall be liable, on conviction, to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding ten years or to both.[200]

5.     POLITICAL PARTIES

Basic requirements for Political Parties

The Republic of Kenya shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article 10.[201] The constitution  provides that every political party shall- have a national character as prescribed by an Act of Parliament; have a democratically elected governing body; promote and uphold national unity;  abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party; respect the right of all persons to participate in the political process, including minorities and marginalised groups; respect and promote human rights and fundamental freedoms, and gender equality and equity;  promote the objects and principles of this Constitution and the rule of law; and subscribe to and observe the code of conduct for political parties.[202]

The Political Parties Act provides that an association of persons or an organization shall not be registered, operate or function as a political party unless it has been registered in accordance with the provisions of the Act and where it meets the requirements set out in Article 91 of the Constitution. [203]The Registrar may deregister a political party if the political party has contravened the provisions of Article 91 of the Constitution.[204]

Nominations

The Elections Act provides that a political party shall nominate its candidates for an election under the Act at least forty-five days before a general election in accordance with its constitution and nomination rules.[205] Subsequently, a political party shall not change the candidate nominated after the nomination of that person has been received by the Commission.[206]

The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of elections for seats and shall ensure that each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats.[207]A presidential election shall be cancelled and a new election held if no person has been nominated as a candidate before the expiry of the period set for the delivery of nominations.[208]

A person is qualified for nomination as  member  of Parliament if the person-  is registered as a voter; satisfies any educational, moral and ethical requirements prescribed by the Constitution and the Elections Act; and is nominated by a political party, or is an independent candidate.[209]

The Political Parties Act establishes two bodies:- The Registrar of Political Parties[210]  which shall be an office within the Commission and shall be responsible for the registration of political parties in accordance with the provisions of the Political Parties Act.[211] The Registrar shall be responsible for the arbitration of disputes between members of a political party.[212]

This Act also establishes the political Parties Dispute Tribunal[213]which has jurisdiction in determining: – disputes between the members of a political party; disputes between a member of a political party and a political party; disputes between political parties; disputes between an independent candidate and a political party; disputes between coalition partners; and appeals from decisions of the Registrar under this Act[214]

The Political Parties Act also establishes the Political Parties Fund[215] which shall be administered by the Registrar.[216]Moneys from this fund may be allocated to a registered political party and may be used for purposes compatible with democracy including:- promoting active participation by individual citizens in political life; covering the election expenses of the political party and the broadcasting of the policies of the political party; ensuring continuous vital links between the people and organs of State; the organization by the political party of civic education in democracy and other electoral processes.[217] Ninety-five  per  cent  of  the  Fund shall be distributed proportionately  by  reference  to  the total number of votes secured by each political party in the preceding general election; and  five per cent for the administration expenses of the Fund.[218]

 


 

[1] Pietro Grilli Di Cortona, Cecilia Manzi, Aline Pennisi, Federica Ricca, Bruno Simeone Evaluation and Optimization of Electoral Systems SIAM, 1999. Page 33.

 

[2] Black, Henry C, and Joseph R. Nolan. Black’s Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence Ancient and Modern;<  http://thelawdictionary.org/political-rights/ > accessed 15th July.2017.

 

[3] Zehra F. Arat Democracy and Human Rights in Developing Countries iUniverse, 2003.page 3

 

[4] Constitution of Kenya, 2010. Art.88

 

[5] Constitution of Kenya, 2010. Art.38

 

[6] Art.22(1).

 

[7] Constitution of Kenya, 2010. Art.82. (1)(2)

 

[8] ibid

 

[9] Elections Act Chapter 7 ; Political Parties Act Chapter 7B ; and Independent Electoral and Boundaries  Commission Act No. 9 Of 2011 ;

 

[10] Constitution of Kenya, 2010. Art.88 (1).

 

[11]ibid

 

[12] Art.88(4)

 

[13] ibid

 

[14] ibid

 

[15]IEBC Act Section 5 (1)

 

[16] IEBC Act Section 5 (2)

 

[17] First Schedule. Para 1 (1-11).

 

[18] First Schedule. Para 3(1-4).

 

[19] First Schedule. Para 3(1).

 

[20] Ibid

 

[21] Ibid para 3(5)

 

[22] Art.88(2)

 

[23] Art.88(3)

 

[24] Constitution of Kenya. Art.84

 

[25]Ibid S.16

 

[26] ibid

 

[27] Ibid

 

[28] Ibid

 

[29] Ibid

 

[30] ibid

 

[31] IEBC Act. Fourth Schedule- Code Of Conduct For Members and Employees Of The Commission Ss.1-11

 

[32] Ibid para 10

 

[33] IEBC Act S.17

 

[34] Ibid

 

[35] IEBC Act S.24

 

[36] Ibid

 

[37] Inference from constitution of Kenya, 2010. Art.38

 

[38] Constitution of Kenya, 2010. Art.38 (3)

 

[39] Art.83(1).

 

[40] Elections Act. S.5(3)

 

[41] Elections Act. S.5(3A)

 

[42] Elections Act. S.5(3)

 

[43] Elections Act. S.5(4)

 

[44] Elections Act. S.5(5)

 

[45] Constitution of Kenya, 2010. Art.83(2)

 

[46] S.7(1)

 

[47] S.7(2)

 

[48] Ibid.s.6(2)

 

[49] Ibid s.4 (2).

 

[50] Ibid S.4(1)

 

[51] Ibid.S.6(3).

 

[52] Constitution of Kenya, 2010 Art.83(3).

 

[53] S.12

 

[54] Article.38(3)

 

[55] Elections Act S.3

 

[56] ibid

 

[57] Constitution of Kenya. Art. 81.

 

[58] Constitution of Kenya. Art. 86.

 

[59] Art.101

 

[60] Art.136(2)

 

[61] Art. 177. (1)

 

[62] Art.180. (1)

 

[63] Art.136. (1)

 

[64] Art.136. (2)

 

[65] S.14(1)

 

[66] Art.137. (1)

 

[67] Art.137. (2)

 

[68] Art.137. (3)

 

[69] Art.138. (1)

 

[70] Art.138. (2)

 

[71] Art.138. (3)b

 

[72] Art.138. (3)c

 

[73] Art.138.(4)

 

[74] Art.138. (5)

 

[75]  Art.138. (7)

 

[76] Art.138(8)

 

[77] Art.138(9)

 

[78] Art.139. (1)a

 

[79] Art.139. (1)b

 

[80] Art.138. (3)c

 

[81] Art.138. (10)a

 

[82] Art.138. (4)

 

[83] Art.138. (10)b

 

[84] Art. 141. (2)a

 

[85] Art. 141. (2)b

 

[86] Art. 141. (1)

 

[87] Art. 141.(3)

 

[88] Art. 141.(4)

 

[89] Assumption Of The Office Of President Act No. 21 of 2012

 

[90] Ibid. Preamble.

 

[91] Ibid.S.5

 

[92] Ibid.S.6

 

[93] Ibid S.12

 

[94] Ibid.S.9

 

[95] Ibid.S.10

 

[96] Art.89. (1)

 

[97] Articles 97(1) (c)

 

[98] Art.90. (1)

 

[99] Art.99. (1)

 

[100] Art.99. (2)

 

[101] Art.101. (1)

 

[102] Art.98. (1)a

 

[103] ibid

 

[104] Art.98. (1) (b) ; art.90(1).

 

[105] Art.98. (1)c

 

[106] Art.98. (1)d

 

[107] Art.98. (1)e

 

[108] See Art.98. (1) (b) ; art.90(1).

 

[109] Art.98(2)

 

[110] Art.193. (1)

 

[111] Art.193. (2)

 

[112] Art.177. (1)a

 

[113] ibid

 

[114] ibid

 

[115] Art.177. (1)b

 

[116] Art.177. (1)c

 

[117] Art.177. (1)c ; Article 90.

 

[118] Art.180. (1)

 

[119] ibid

 

[120] Art.180.(2)

 

[121] Art.180.(3)

 

[122] Art.180. (4)

 

[123] Art.180. (5)

 

[124] Art.180. (6)

 

[125] Art.180. (7)

 

[126] Art.85

 

[127] Articles 97, 98,137, 177, and 180 of the Constitution.

 

[128] Art.137(1)c,d

 

[129] Art.99(1)(c)I ; art.85

 

[130] Art.99(1)(c)ii ; ; art.85

 

[131] Art.193(1)(c)ii

 

[132] Art.86(c)

 

[133] Art.138

 

[134] Elections Act. S.39(1)

 

[135] Elections Act. S.39(3)

 

[136] Maina Kiai & 2 others v Independent Electoral and Boundaries Commission & 2 others [2017]

 

[137] ibid

 

[138] ibid

 

[139] ibid

 

[140] Constitution of Kenya. Art.104

 

[141] See Elections Act.S.45

 

[142] Ibid S.3

 

[143] ibid

 

[144] Ibid S.45(4).

 

[145] Ibid S.45(5).

 

[146] Ibid S.45(6).

 

[147] Art.38(3)

 

[148] Art.83(1)

 

[149] Art.82(1)d

 

[150] Art.255

 

[151] Art.255(3)b

 

[152] Art.257(10)

 

[153] Elections Act. S.49(1)

 

[154] Elections Act. S.49(2)

 

[155] Elections Act. S.49(3)

 

[156] Elections Act. S.49(4)

 

[157] Elections Act. S.49(5)

 

[158] Elections Act. S.49(7)

 

[159] Elections Act. S.49(6)

 

[160] Art.255(2)a

 

[161] Art.255(2)b

 

[162] Ibid S.54

 

[163] Elections Act.S.89(1)

 

[164] Elections Act.S.89(2)

 

[165] Elections Offenses Act. Ss.3-20

 

[166] ibid

 

[167] Ibid S.3

 

[168] Elections Offences Act S.4(1)

 

[169] Elections Offences Act S.4(4)

 

[170] Elections Offences Act S.4(3).

 

[171] Elections Offences Act S.4(4)

 

[172] Elections Offences Act S.5

 

[173] Elections Offences Act S.6.b

 

[174] Elections Offences Act S.6.c

 

[175] Elections Offences Act S.6.d

 

[176] Ibid. (e)

 

[177] Ibid (f)

 

[178] Ibid (g)

 

[179] Ibid (h)

 

[180] Ibid (m)

 

[181] Ibid S.7

 

[182] Ibid S.7(1)b

 

[183] Ibid S.7(3)e

 

[184] Ibid S.8(1)

 

[185] Ibid S.8(1)b

 

[186] Ibid S.8(1)d

 

[187] ibid

 

[188] ibid

 

[189] See S. 24 Elections Offences Act General penalty

 

[190] Ibid S.10

 

[191] See S. 24 Elections Offences Act General penalty

 

[192]Elections Offences Act S.9 (1).

 

[193] See S. 24 (Supra).

 

[194] Elections Offences Act S.14 (1).

 

[195] Ibid S.14(6)

 

[196] S.11(a)

 

[197] ibid

 

[198] ibid

 

[199] Ibid S.12

 

[200] Ibid S.17

 

[201] Constitution of Kenya Article 4(2).

 

[202] Constitution of Kenya Article.91(1)

 

[203] Political Parties Act.S.4

 

[204] Political Parties Act S.21

 

[205] Elections Act. s.13 (1)

 

[206] Ibid

 

[207] Art.90(2)

 

[208] Art.138(8)

 

[209] Elections Act S.22

 

[210] The Political Parties Act. S.39

 

[211] Ibid  S.3(3)

 

[212] Ibid S.3(4)

 

[213] The Political Parties Act. S.5

 

[214] Ibid S.40

 

[215] The Political Parties Act. S.23

 

[216] Ibid

 

[217]  Ibid S.26

 

[218] The Political Parties Act S.25

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