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]</