The mission of every political party must be to adhere to the principals of internal democracy, inclusiveness, equality, non-discrimination, rule of law, etc. Firstly, every political party must accept the terms contained in the new code of conduct for political parties:
91. (1) Every political party shall— (h) subscribe to and observe the code of conduct for political parties.
Every party must not only respect the rights of all citizens, but practice non-discrimination within its rank and file. Chapter 7 - Representation of the People, Part 3 - Political Parties, Article 91, excerpts:
91. (1) Every political party shall— (f) respect and promote human rights and fundamental freedoms, and gender equality and equity;
Chapter 4 - The Bill of Rights, Article 38, excerpts on the rights and non-discrimination of all citizens with respect to political parties:
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— (b) any office of any political party of which the citizen is a member.
(3) Every adult citizen has the right, without unreasonable restrictions— (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.
The political parties must set an example that can be emulated by the citizens by the open practice of internal democracy and positive affirmation of minorities and special interests:
91. (1) Every political party shall— (b) have a democratically elected governing body; (d) abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party; (e) respect the right of all persons to participate in the political process, including minorities and marginalised groups;
The rules of the game apply, without exception, to all registered political parties, their candidates as well as independents:
82. (1) Parliament shall enact legislation to provide for— (b) the nomination of candidates;
84. In every election, all candidates and all political parties shall comply with the code of conduct prescribed by the Independent Electoral and Boundaries Commission.
The New Constitution contains affirmative legislation for the political participation of minorities and special interests at both the national and county levels. The onus is on the political parties to facilitate the effective participation and representation of these groups by drawing up party lists of nominees that reflect balance in gender, race, class, religion, language, etc. Excerpts from Chapter 7 - Representation of the People, Article 90 that discusses the provisions for party lists found in Articles 97 and 98 referred to therein and to which the reader may refer:
90. (1) Elections for the seats in Parliament provided for under Articles 97. (1) (c) and 98. (1) (b), (c) and (d), and for the members of county assemblies under 177 (1) (b) and (c), shall be on the basis of proportional representation by use of party lists.
(2) The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of elections for seats provided for under clause (1) and shall ensure that— (a) 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 provided for under clause (1), within the time prescribed by national legislation; (b) except in the case of the seats provided for under Article 98 (1) (b), each party list comprises the appropriate number of qualified candidates and alternates between male and female candidates in the priority in which they are listed; and (c) except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya.
The importance of the composition of Political Party Lists and the "priority in which they are listed" as stated by Article 90. (2) (b) above was brought into sharp focus six months after the March 2013 General Elections when the Electoral Court sitting in Nairobi ruled that the IEBC erred in varying the order of names within the Senate nomination party lists of two political parties, and thereby revoked the nomination of two Senators representing Persons With Disability. The Court ordered that the nominees whose names were higher up the respective lists, are the duly nominated Senators.
Further to the demands of the New Constitution for political parties to provide balanced party lists, the parties are required to have an equally balanced leadership within their structures; all political parties must walk the talk by reflecting the face of Kenya. Excerpts from Article 91, Part 3 - Political Parties, of Chapter 7 - Representation of the People:
91. (1) Every political party shall— (a) have a national character as prescribed by an Act of Parliament; (e) respect the right of all persons to participate in the political process, including minorities and marginalised groups; (f) respect and promote human rights and fundamental freedoms, and gender equality and equity;
The above provisions basically bar the registration of parties that are based on religion, race, gender, etc and therefore discriminatory:
(2) A political party shall not— (a) be founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis;
Nevertheless, some social scientists have faulted these provisions in Article 91., terming them harmful to the rights of homogenous groups to associate. " ....... to limit the right of ethnic minorities to pursue their political aspirations through parties of their own. This is tantamount to a limit on their right of association, which fails to take cognizance of the fact that in some parts of the world, ethnically based parties have actually contributed to social tranquility." Oduor, RMJ (2011).
Oduor further makes the point that " ....... although the Constitution requires each political party to “promote and practise democracy through regular, fair and free elections within the party”, the parties are likely to subscribe to the majoritarian orientation which does not suit
the interests of ethnic minorities." (Oduor).
Following the gazettment by the Independent Electoral and Boundaries Commission IEBC of the March 2013 election and nomination results, the Commission had to listen to and resolve numerous disputes arising from the nominations of Members to the County Assemblies.
Clearly, most of the disputes touched on the constitutional requirements discussed above, of the mission of all political parties i.e., to conform to democratic ideals.
The Commission highlighted the key points that cut across most of the complaints raised as touching mostly on fairness and inclusiveness in representation: (a) That the final allocation lists for each County Assembly did not reflect regional (meaning a distribution of the seats amongst the various constituencies/wards in Counties) and ethnic diversity; (b) That political parties had breached their nomination rules in submitting names; (c) That the names submitted by the branches had been changed by the headquarters and the Commission should revert back to the names on the lists by the branches. (d) That the process of short-listing by the political parties was riddled with nepotism, corruption and bias and the lists therein should be annulled; (e) That persons nominated as representatives of Persons With Disability (PWD), youths and marginalized groups were not qualified to represent the said interests; (f) Issues as to the definition of Persons with Disability; (g) That certain categories of disability were not catered for; (h) Definition of marginalized groups; (i) That certain marginalized categories were not represented; (j) Complaints that certain nominees were relatives of politicians, party bosses or other influential persons; (k) That certain persons nominated were not from the political parties that were entitled to the seats in question; (l) Whether party nominees should be registered as voters in the respective counties; (m) Whether party nominees should be residents of the respective counties; (n) The accuracy of the number of seats allocated by the Commission to political parties; (o) Legality of coalition agreements where parties donate seats allocated to them to coalition partners; (p) That certain persons nominated were public officers at the time of their nomination. (IEBC Website. Accessed Aug 2013).