Legislating the 2022 Kenyan Election

By Fredrick Obwanda

Kenya’s general elections are held on the second week of every fifth year as prescribed by the Constitution 2010. It outlines a detailed electoral process birthed from painful lessons of Kenya’s most contentious elections in December 2007.

The ambiguity surrounding the announcement and declaration of election results by the defunct Electoral Commission of Kenya (ECK) triggered post-election violence that claimed hundreds of lives.

In the aftermath, the late Kofi Annan- led peace and reconciliation efforts between the opposing political sides identified the need to reorganise the electoral systems as top priority. Consequently, the Government set up The Independent Review Commission (Kriegler Commission) in February 2008 to investigate all aspects of the 2007 elections.

It made recommendations on the constitutional and legal framework of the entire process, the organisational structure of the electoral management system, public participation as a part of the electioneering process, the organisation and conduct of the election officials, and finally counting, tallying, and the post-election procedures.

Fast-forward to the 2010 constitutional moment, the country dedicated a whole chapter in the Constitution (Article 88) to secure the independence and functionality of the newly formed Independent Electoral and Boundaries Commission (IEBC). It set out clear mandates on the entire electoral process and powers to even sanction those who do not follow through within its timetable of events.

Members of Parliament were mandated to legislate some critical bills in parliament to operationalise the election system before 2013 to avoid a repeat of the 2007 nightmare.

Election laws

Several Acts were established including The Election (Voter Registration Regulation) of 2012, to clarify individual requirements for registered voters. The Election (General) Regulations, 2012 outlined procedures and activities on election day, specifying who does what, where, and why.

The Elections Campaign Financing Act, 2013, which has been a thorn in the flesh for most candidates, was formulated to guide the use of election finances. Citizen’s felt that elective posts favour well-resourced candidates while others had meagre amounts to work with, thereby leading to a ‘bought’ system. However, this Act has not operationalised because legislators have not agreed on the timeframe and amount cap.

Some of these Acts were amended before the 2017 elections based on the lessons from the 2013 election.

Other Election related Acts include The Elections (Technology) Regulations of 2017 guide the use of technology in the election process, especially at the point of biometric voter data capture and results in transmission. The Elections (Voter Education) Regulations 2017 defines public involvement and guides the Commission on educating the public on elections.

The Election Party Primaries and Party (List) Regulations, 2017, guides political parties on how to conduct their party primary activities within the confines of the law. In addition, those dissatisfied can petition the political parties tribunal. The objective is to govern the nomination and submission of the list of candidates to the Commission within set deadlines.   Previously, the Commission could not satisfactorily explain how some candidates ended up in the voter register.

To safeguard the timeframes for amendments, the constitution, states that any amendments to the elections processes be done before twenty-four months to the election to allow the IEBC to prepare adequately. 

2022 Electoral amendments

However, with the 2022 elections just five months away, the politicians seem determined to introduce several amendments to the existing election laws; oblivious of the timeframe that IEBC would need to adjust its systemic operations without running into confusion and endangering the entire electoral process.

One would imagine that policy briefs from the Commission based on the 2017 election reports ought to drive the amendments. However, it seems some of these amendments in parliament are in themselves not good for elections management, especially with the election date so near.

For instance, the Political Parties (Amendment) Bill, 2021, which was enacted into law by the President in January 2022, amends the Political Parties Act of 2011 by introducing the concept of coalition political parties, outlining functions of political parties, as well as changing the criteria of accessing the Political Parties Fund. However, it seems to put the elections body in the crosshairs, which may lead to chaotic elections. Why?

Firstly, it defines a political party by irregularly expanding it beyond Article 260 of the Constitution’s definition of a political party as an association contemplated in Part III of Chapter Seven. The inclusion of a coalition establishes a party incapable of incarnating the attributes of the political party defined in the article. The only association capable of being a political party is the one that meets the requirements of Part III of Chapter Seven of the Constitution (Articles 91-92).

Secondly, the definition of a political party to include a coalition is problematic from a human rights standpoint. Article 38 of the Constitution provides that every citizen is free to make political choices, which include the right to form or participate in forming a political party.

Since existing parties form coalitions, expanding the definition of a political party to encompass a coalition takes away the individual right of a citizen to form such a party because that right cannot be exercised by an existing political party on behalf of its members.

The political parties are not the right holders but are themselves a creation of delegated power by the people who exercise their political rights. The demarcation is clear and the right of political parties is clear.

The right of a citizen to contest any office of a political party of which the citizen is a member (Article 38(1) (c) is also curtailed by the inclusion of coalition within the ambit of a political party since positions in coalitions are reserved for the party bigwigs. This means that the final flag bearers in April 2022 may present legal questions to IEBC as to the political parties sponsoring their candidature. A constitutional court battle on the pointed issues may throw the elections in total disarray.

Elections (Amendment) Bill 2021

Meanwhile, the attempt to alter the transmission of elections results by deleting the entire subsection (1C) of section 39 of the Elections Act 2011, which is a pointer on the determination and declaration of results, would take the country back to the pre-2007. It also means the entire transmission process is to be overhauled.

Subsection (1G) of section 39, which outlines a transparent process from the polling station to the tallying centre, is also targeted for deletion. This will cast doubt on the entire electoral body and coming from an institution whose trust capital among Kenyans is low, is bad law.

Based on Wanjiku’s views as evidenced in the Krieger Report, legislating election processes makes sense when done two years before an election to allow for smooth functioning of IEBC. Doing so when it is already procuring key election paraphernalia is endangering the whole republic and could it be that we forgot how we got here in the first place.

Fredrick Obwanda is Programme Director at Uwazi Consortium

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