Electoral System Under the New Constitution

 

 

Regular. Free. Fair

 

Contents
Introduction

Bill of Rights

The Constitution of Kenya 2010 grants every citizen the right to political persuasion, freedom of association and the right to be registered and to vote.

Inclusive

The Electoral System under the New Constitution makes affirmative provisions for the effective participation of women, the marginalised and special interests groups.

Regular

The Constitution of Kenya 2010 further provides for a general election on the same date, every five years.

Free and Fair

Voting for all electoral positions is by secret ballot. Each voter  makes a single selection on the ballot paper for a candidate of their choice for a specific elective seat.

Credible

Electoral system must be simple, transparent and secure.

Electoral Courts

The Electoral Process is concluded when and only when electoral courts have dispensed with all election petitions.

 

Introduction

 

Kenya's New Constitution brought with it various changes into the electoral system. These changes were geared towards a free and fair electoral process that is more representative and inclusive than was the case in previous elections.

Past elections in Kenya were bedeviled by many ills and inefficiencies that led to exclusion and misrepresentation, dictatorships and rule by minorities, political uncertainty, controversy and conflict, etc.

The new changes heralded a new dawn for Kenya. The New Constitution and relevant legislation have variously provisioned for fair, speedy and just adjudication on electoral disputes that may arise. In this regard, the Independent Electoral and Boundaries Commission IEBC, is empowered to consider and resolve disputes arising from the delineation of electoral boundaries and the nominations of candidates by political parties. Thereafter, the Courts can be expected to rule justly on petitions touching on the election itself:: 

88. (4) The Commission is responsible for ....... (e) 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;

Devolution has created the County as the new key center of political competition such that five out of the six elective seats will fill positions within the county. The new electoral laws must therefore curb the use of state resources and spending by politicians and political parties especially at the local level - to prevent them from buying their way into public office. "The risks are said to be higher where there are weak democratic institutions, especially electoral systems, and where the poor, who are less informed, are more likely to vote on the basis of the candidates’ campaign spending" (Kirira N., 2011).

 


 

 

It's about the Bill of Rights

 

The changes introduced in the electoral system are a consequence of the framework that the Bill of Rights has sought to establish. In other words, without the guarantees contained in the Bill of Rights, it is of null effect to provision for democratic electoral processes, and utterly hopeless to attempt to implement such systems. Excerpts from Chapter 4 - The Bill of Rights, Part 2 - Rights and Fundamental Freedoms, Article 38, excerpts:

38. (1) Every citizen is free to make political choices, which includes the right— (a) to form, or participate in forming, a political party; (b) to participate in the activities of, or recruit members for, a political party; or (c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for— (a) any elective public body or office established under this Constitution; or (b) any office of any political party of which the citizen is a member.
(3) Every adult citizen has the right, without unreasonable restrictions— (a) to be registered as a voter; (b) to vote by secret ballot in any election or referendum; and (c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

 


 

 

Inclusive

 

To produce these desired outcomes (chief among which is the realisation of fair and equitable representation), the electoral system must make special provisions for specific groups and voices, even within the context of "one man one vote", and facilitate the registration of everyone who qualifies and desires to vote, including citizens outside the country and arrange for their access to a polling station. Chapter 7 - Representation of the People, Part 1 - Electoral System and Process, excerpts:

81. The electoral system shall comply with the following principles–– (b) not more than two-thirds of the members of elective public bodies shall be of the same gender; (c) fair representation of persons with disabilities; (d) universal suffrage based on the aspiration for fair representation and equality of vote; ......

And from Chapter 4 - The Bill of Rights, Part 3, Specific Application of Rights, Article 54:

54. (2) The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.

Further on inclusiveness:

82. (1) Parliament shall enact legislation to provide for— (c) the continuous registration of citizens as voters; 

88. (4) ........ (a) the continuous registration of citizens as voters; (b) the regular revision of the voters’ roll;

82. (1) Parliament shall enact legislation to provide for— (e) the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.

83. (3) 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 .......

It must be one that gives due considerations to the disadvantaged and those with special needs who in most cases, may not be inclined to participate in electoral processes or find it difficult to do so:

82. (2) Legislation required by clause (1) (d) shall ensure that voting at every election ....... (c) takes into account the special needs of— (i) persons with disabilities; and (ii) other persons or groups with special needs.

 


 

 

Regular

 

In its basic definition, politics is the pursuit of state power, and elections are the means to legitimize that pursuit. Recalling that the people are the supreme authority in Kenya, it is imperative that there are clear laws that provide for periodic elections so that the people can handover the instruments of state power to those they choose. Consequently, the New Constitution has set out time-lines to govern election dates in Kenya. First and foremost, general elections (for all seats) must be held simultaneously, at 5 year intervals. Excerpts from Chapter 8 - The Legislature, Article 101 on the date of elections of Members of Parliament, i.e., of Senators to serve in the Senate, and of Members of the Constituencies and Women Representatives of the Counties who will serve in the National Assembly:

101. (1) A general election of members of Parliament shall be held on the second Tuesday in August in every fifth year.

Excerpts from Chapter 9 - The Executive, on the date of election of the President:

136. (2) An election of the President shall be held–– (a) on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year; ........

The date for the election of Members of the County Assemblies is captured in Chapter 11 - Devolved Government:

177. (1) A county assembly consists of— (a) members elected by the registered voters of the wards, ....... on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;

The same date applies for the election of the County Governor:

180. (1) The county governor shall 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. 

The election date remains the same for all the six seats that will be contested for at all general elections even if the IEBC should choose to stagger the balloting process over say, 2 days. The drafters of the New Constitution considered that it is important to have general elections conducted and dispensed with once every five years. Sixth Schedule - Transitional and Consequential Provisions, Article 9, excerpts:

9. (1) The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, ........

The foregoing not withstanding, the Court of Appeal has had occasion to rule that the 10th Parliament must complete its 5 year term which began in January of 2008. Hence the Assembly will automatically dissolve in January 2013, after which elections must be held within 60 days.

9. (1) The first elections ........ under this Constitution shall be held ........ within sixty days after the dissolution of the National Assembly at the end of its term.

Accordingly, the body mandated to set the date of elections i.e., the IEBC has already announced March 4, 2013 as the date of the first general elections under the New Constitution. The exceptional circumstances that could alter this date are captured in Article 9. (2) of the Sixth Schedule:

9. (2) Despite subsection (1), if the coalition established under the National Accord is dissolved and general elections are held before 2012, elections for the first county assemblies and governors shall be held during 2012.

NB. If the next elections should be held in 2017, i.e., on "the second Tuesday of August in every fifth year" the next Parliament and County Assemblies will serve for four years and three months (until June of that year), while the national and county Governments will serve for about four years and 5 months (until August of the same year).  

 


 

 

Free and Fair

 

To win the trust and faith of all the stakeholders (i.e., the voters, the political parties and the candidates) within any electoral process, the system must at the very least incorporate:

81. ....... (e) free and fair elections, which are— (i) by secret ballot; (ii) free from violence, intimidation, improper influence or corruption; (iii) conducted by an independent body; (iv) transparent; and (v) administered in an impartial, neutral, efficient, accurate and accountable manner.

It is indeed refreshing to note that the Constitution grants political parties an important position with regard to the electoral process by establishing a Political Parties Fund, and directing that State broadcasting services afford fair and equal coverage to all the parties.

92. Parliament shall enact legislation to provide for— (a) the reasonable and equitable allocation of airtime, by Stateowned and other mentioned categories of broadcasting media, to political parties either generally or during election campaigns; (b) the regulation of freedom to broadcast in order to ensure fair election campaigning; (f) the establishment and management of a political parties fund; (h) restrictions on the use of public resources to promote the interests of political parties; ........

Sub-clause (h) above is important in terms of fairness in that it seeks to prevent State officers and State Organs from offering any covert assistance to any ideology or political party - what may be referred to as 'improper influence' (see sub-clause 81. (e) (ii) above). Even more important is the provision that such a State Officer must quit office several months prior to an election (unless of course it's a by-election).

99. (2) A person is disqualified from being elected a member of Parliament if the person— (a) is a State officer or other public officer, other than a member of Parliament;

 


 

 

Credible (simple, transparent, secure)

 

To the end that the electoral system should be easy to follow, the New Constitution is clear and unambiguous:

82. (2) Legislation ....... shall ensure that voting at every election is— (a) simple; (b) transparent; ........

86. ....... (a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;

Therefore, new laws governing the conduct and regulation of all elections must be in place to ensure a credible electoral outcome. Accordingly, the Independent Electoral and Boundaries Commission IEBC is the only body mandated by the Constitution to plan for and to supervise all elections:

82. (1) Parliament shall enact legislation to provide for— (d) the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda, ........

Once voting has concluded, counting begins immediately at the polling station. The IEBC then formally announces the polling station's results of the votes garnered by each candidate for the specified elective position. Thereafter, the IEBC tallies the votes for each candidate for a specific seat from all the affected polling stations (ie the aggregate of those that make up an electoral area), and declares the winners:

86. At every election, the Independent Electoral and Boundaries Commission shall ensure that— (b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station; (c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; .......

Vote counting is one of the electoral process that is fraught with danger and mischief. It is incumbent on the IEBC therefore to ensure that clear and verifiable security arrangements are in place to protect the credibility of the vote counting, tallying and storage of ballot papers and other documentation:

86. (d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

 


 

 

Electoral Courts

 

Notwithstanding all of the foregoing with regard to the Electoral System under the Constitution of Kenya 2010, there was widespread expectation that the March 4th 2013 exercise would be up against severe odds. Indeed it was, but despite these significant challenges and logistical nightmares faced by the electoral body, the IEBC, the number of electoral petitions lodged with the Courts by aggrieved parties remained small - representing only about 10 percent of electoral seats. The recurring theme running in almost all the various petitions, was that the integrity of the process was compromised. It was, to paraphrase Justice (of the Supreme Court) J.B. Ojwang' writing on elections disputes, whether the process, "....... reflects on the quality and the constitutional integrity of the mode of discharge of the electoral mandate, by the responsible entity." (Ojwang' JB, 2013). 

Inevitably, the performance of the electoral body became the focus of these electoral petitions. Almost all the successful petitions were as a result of electoral irregularities i.e., errors of commission and/or ommission on the part of the IEBC. Many of those that were struck out or otherwise dismissed, failed to show that the said irregularities affected the outcome of the election. "....... the Court should carefully consider the real impact of any alleged irregularity – especially irregularity attributed solely to the public body entrusted with the conduct of elections – upon the voting outcome. If such irregularity has had no – or minimal – effect, then there is, in general, no case for annulling the election result. It must be considered, in this regard, that an election is not a process designed for the benefit of the petitioner, but is a much more broad-based exercise that seeks to serve the public interest in the first place" (J.B. Ojwang, 2013).

One notable exception however, was on the successful petition of the election of the Senator for Bungoma: The Court recommended that criminal investigations of bribery be initiated against the winner of that election - Moses Masika Wetangula. Section. Part 8 -  Election Disputes Resolution, Election Petitions, Section 87 of the Elections Act 24 of 2011:

87. (1) An election court shall, at the conclusion of the hearing of a petition, in addition to any other orders, send to the Director of Public Prosecutions, the Commission and the relevant Speaker a report in writing indicating whether an election offence has been committed by any person in connection with the election, and the names and descriptions of the persons, if any, who have been proved at the hearing to have been guilty of an election offence.

The incumbent Senator appealed the ruling of the High Court in Bungoma, and so pending the determination of the appeal, the law could not bar him from contesting in the subsequent by-election of December 2013, which he won. However, in a March 2014 decision, the Appeals Court sitting in Kisumu upheld the judgement of the lower Court. As expected, the Senator appealed to the Supreme Court on the 25th April 2015.

The highest Court in the land essentially sustained the rulings of the lower courts in a decision of 17th of March 2015, i.e., that the Senator bribed and treated voters - an electoral offence; and invoking the above Section 87. (1) of the Elections Act, directed its Registrar to write to the bodies mentioned in the Section, setting the stage for the possible removal of the Senator.

The reader may follow this link for a summary of the electoral courts decisions with respect to the Bungoma County Senate elections.

The following is a summary of the rulings of the electoral petitions lodged with the Courts following the first General Elections under the New Constitution:

 

Table 3.1 Summary of Successful Electoral Petitions following the First General Elections under the Constitution of Kenya 2010 in March 4, 2013.

 

Electoral Seat  
Total Number of Seats
Petitions Lodged
Petitions Percentage
Successful Petitions
Successful Petitions Percentage
Successful Petitions As A Percentage of All Seats
Governor 47 24 51% 2 8.33% 4.26%
Senator *67 13 19% 3 23.08% 4.48%
Women Representative 47 9 19% 0 0.00% 0.00%
Member of the National Assembly **302 71 24% 6 8.45% 1.99%
Member of the County Assembly 1,450 67 5% 9 13.43% 0.62%
Total/Mean 1,913 184 10% 20 10.87% 1.05%

*Includes 20 nominated members representing women and special interests.

**Includes 12 nominated members. 

 

Key findings from the table show that the number of petitions lodged represented only 10 percent, or 184 of the 1,913 elections conducted on the 4th of March 2013. Of these, slightly over ten percent or 20 were successful, representing just over one percent (1.05%) of the total number of electoral seats. 

All in all, Kenya's Electoral Process only comes to a close once all petitions have been heard and determined at the Courts. All petitions were concluded by the 23rd of October 2013, in which most (78%) were either dismissed or struck out, and 1% or 17 of them were withdrawn by the petitioners and hence did not proceed to full hearing. Of those that were successful, a few were appealed at the Appeals Court, however. Two of these - for the Governor of Lamu and for Lunga Lunga Constituency - were overturned by the Appellate Court in Malindi on the 21st and on the 27th of November, 2013 respectively, thus cancelling by-elections that were set to take place in December. In one other case, the Court of Appeal sitting in Kisumu halted on the 27 November, a planned by-election in Nyaribari Chache that had been scheduled to take place in December, until the appeal was heard and determined.

Going forward, the number of disputes expected at a general election is expected to drop as our democracy matures and electoral institutions develop adequate capacity to conduct successful (credible, free, fair) elections. 

NB. Links to respective successful petitions of the 2013 General Elections can be accessed under the respective legislative body's discussion (i.e., the National Assembly or the Senate) via the main menus at the top of this website. The electoral body on the other hand, is discussed in greater detail under the Independent Electoral and Boundaries Commission IEBC link under the Government menu link.

 

 


 

 

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.

2. Kirira Njeru (2011). "Public Finance under Kenya's new Constitution". Constitutional Working Paper Series No. 5. Society for International Development, SID.

3. Kenya Law Reports. National Council for Law Reporting. The Attorney General.

4. Summary of Electoral Petitions for the 2013 General Elections. IEBC Website. Retrieved October 2013.

5. Elections Act 24 of 2011. National Council for Law Reporting. The Attorney General.

6. Ojwang' J.B, (2013). Election Disputes and the Judicial Process: Emerging Lessons. Justice Jackton B. Ojwang'.

7. Moses Masika Wetang’ula v Musikari Nazi Kombo & 2 others [2014] eKLR. Civil Appeal No 43 of 2013. National Council for Law Reporting. The Attorney General.

8. Moses Masika Wetangula v Musikari Nazi Kombo & 2 others [2015] eKLR. Petition No 12 of 2014. National Council for Law Reporting. The Attorney General.

9. "Is this the end of Wetangula's political career?". Article on the Hashtag Network online. Accessed October 2015.

 

 

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