At this time next month, Kenyans will be queuing at polling stations and casting their ballots before going home to pray for a peaceful General Election and outcome.
Over the past weeks, a few publications have stated with authority that there are currently no regulations meant to monitor this year’s elections campaign and financing. This has been blamed on the Independent Electoral and Boundaries Commission failing to submit the rules to Parliament for approval, at least 12 months before the election, as required under Section 5 of the Election Campaign Financing Act 2013.
Section 5 of the Act states that the Commission shall make rules to regulate election campaign financing of a general election at least twelve months before the election. The purpose of the Act is to guarantee regulation, management, expenditure and accountability of election campaign funds during election and for connected purposes.
The IEBC has faced a lot of criticism over the past few weeks, and today it deserves a guardian. On August 8, 2016, the commission, under the leadership of Issack Hassan, published in TheKenya Gazette, regulations governing the limits on contributions that candidates can receive, and, limits on expenditure that candidates may incur during this General Election.
A few questions, consequently, become clear from the rules gazetted by the IEBC. First, Section 5 of the Act does not state that Parliament is required to approve the rules put in place by the electoral commission. Second, the rules were published on time to the exact date of this election, and are currently in force. Third, there are very clear rules governing campaign financing in this General Election, and penalties that come with breaking them are clearly spelt out.
The rules prescribe that a political party can receive a total of Sh15 billion in contributions, and contributions of up to Sh3 billion from a single source. A presidential candidate is limited to receiving contributions of up to Sh5.2 billion in total, towards their campaign. Penalties for failure to comply include a fine not exceeding Sh2 million, or a term of imprisonment not exceeding five years, or both.
If, indeed, MPs and some sections of the media continue to argue there are no rules, the Constitution offers answers. Article 88 of the Constitution states that the electoral commission is responsible for conducting or supervising elections as well as regulating the amount of money that may be spent by or on behalf of a candidate or party.
Parliament’s duty to enact laws pertaining to elections is prescribed in Article 82, and has been limited to the delimitation by the IEBC of electoral units for election of members of the National Assembly and County Assemblies, nomination of candidates and registration of voters. It can, therefore, be concluded that the IEBC had the jurisdiction to prescribe rules on campaign donations and expenditures, in accordance with the Constitution and the Act. One cannot argue that the Act of Parliament wields so much power, that it is above the Constitution.
However, it is rather peculiar that the Election Campaign and Financing Act 2013 was conveniently suspended through The Election Laws (Amendment) Act 2017, which commenced on 30 January 2017.
Section 1A of the Financing Act states: “The operation of this Act is suspended and the Act shall come into force immediately after the general elections to be held in the year 2017”. What is so onerous about the Act that it has to wait until 2022 for us to see its full effect?
Should the bone of contention carry on to be that the suspended Financing Act means there are currently no rules, yet the IEBC passed those rules on August 8, 2016 as mandated by the Constitution, which was long before the Act was amended, and are therefore fully applicable?
As we draw near to the election and information gets muddled with each passing day, now more than ever the IEBC should be vigilant in its constitutionally mandated duty of voter education, in accordance with Article 88, to ensure voters are fully informed of the laws in place.
Gladys Burini works with international businesses on commercial litigation.