Every political party in Kenya must be driven by values of honesty, integrity, accountability, transparency, ethics, etc. It must be willing to submit to the regular scrutiny by the IEBC, into the conduct of its internal affairs. For example, Article 88 of Chapter 7 - Representation of the People, Part 2 - Independent Electoral and Boundaries Commission and Delimitation of Electoral Units, refers to the role of IEBC to monitor the activities of political parties (and candidates), to ensure they are in conformity with the national code of ethics and integrity:
88. (4) The Commission is responsible for ....... (d) the regulation of the process by which parties nominate candidates for elections; (j) the development of a code of conduct for candidates and parties contesting elections; and (k) the monitoring of compliance with the legislation ....... relating to nomination of candidates by parties.
It will not be business as usual for the political elite who must henceforth, satisfy all of the constitutional requirements to run in an election. This fact was brought to national prominence in July of 2013, when a nominee of a political party in a by-election for the Senator for Makueni County, was disqualified by a Nomination Dispute Resolution Committee (NDRC) of the IEBC because she was not a registered voter. Chapter 8 - The Legislature, Part 2 - Composition and Membership of Parliament, Article 99, excerpts:
99. (1) ....... , a person is eligible for election as a member of Parliament if the person— (a) is registered as a voter;
Despite appellate protestations at the High Court disputing the jurisdiction of the NDRC to disqualify the candidate, the Court upheld the ineligibility of the candidate.
In July 2014, the Commission barred a candidate from contesting a by-election for the Mathare Constituency seat in Nairobi County on the grounds that he had not resigned from public office six months to the August by-election in accordance with Section 43 of the Elections Act 2012:
43. (5) A public officer who intends to contest an election under this Act shall resign from public office at least seven months before the date of election.
The said candidate appealed the decision of the IEBC's NDR to the High Court arguing that he did not resign but was sacked from office. However, the Court upheld the decision of the Commission as the candidate had actually been relieved of his duties in March which was less than 6 months to the August date (even though the by-election date had not been set by then), and so he had no way of guessing how far the election appeal case would be in Court. The point of this case was that a public officer must not in any way however remote, gain any advantage by virtue of his/her office as an election approaches, in the event that he/she makes a later decision to run for office. It also makes the point that such a public officer must demonstrate willingness to take a calculated (but very high) risk by resigning from office while an election appeal case is still in court even if they have no way of knowing whether such an appeal will succeed (and therefore a by-election will be ordered) or fail and therefore no by-election is held.
Article 43. (5) of the Elections Act continued to elicit further controversy specifically from public officers wishing to contest in by-elections and which by law must be held within 3-months of a vacancy being declared, arguing that normally the circumstances leading to a by-election are often uncontemplated (death, resignation, etc) and therefore such an officer cannot be able to resign in good time, i.e., 6 months before the date of the by-election.
The contradiction was eventually laid to rest by the High Court on the 18th of March 2015 when it ruled that the fault lay with the Article and not with the IEBC and hence ruled Article 43. (5) of the Elections Act 2012 as unconstitutional.
Said the Court, "1. Section 43(5) of the Elections Act is unreasonable in its limitation of the rights of public officers under Article 38(3)(c ) of the Constitution to vie in a by-election and to that extent only is hereby declared unconstitutional.
3. A permanent injunction is hereby issued to restrain the IEBC from barring a public officer from contesting a by-election under Article 101(4) of the Constitution on grounds that the public officer did not resign from office within seven months of the by-election as such a period would be untenable and impractical under the said Article 101(4) of the Constitution."
Political Parties and their candidates must also pay due attention to matters financial and submit to any scrutiny touching on their sources of funding and how the funds have been spent:
88. (1) (i) 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;
Sub-Clause (i) above is important here when one recalls that public funds spent by political parties are subject to the additional scrutiny of the Auditor-General. Excerpts from Article 229 of Chapter 12 - Public Finance, Part 7 - Financial Officers and Public Institutions:
229. (4) Within six months after the end of each financial year, the Auditor-General shall audit and report, in respect of that financial year, on— (f) the accounts of political parties funded from public funds;
The same values of honesty, integrity, and ethics that should guide political parties, also extend to the conduct of all would-be candidates - whether sponsored by a political party or not (independents):
99. (2) A person is disqualified from being elected a member of Parliament if the person— (f) is an undischarged bankrupt; (g) is subject to a sentence of imprisonment of at least six months, as at the date of registration as a candidate, or at the date of election; or (h) is found, in accordance with any law, to have misused or abused a State office or public office or in any way to have contravened Chapter Six.
Further to the above Article 99, Article 85 ensures that even independent candidates are not left out on integrity and ethics issues in order to ensure a fair election outcome. Indeed, the Mathare Constituency by-election referred to above was pushed back by several days from the 7th August to the 11th to allow for the inclusion of an independent candidate's name on the ballot paper. The said candidate had earlier been denied by the IEBC from contesting on the grounds that the Registrar of Political Parties had not received and acknowledged his resignation from his political party at least 3 months to the date of the election as required by the Constitution's Article 85 in Chapter 7 - Representation of the People, Part 1 - Electoral System and Process. Excerpts:
85. Any person is eligible to stand as an independent candidate for election if the person–– (a) is not a member of a registered political party and has not been a member for at least three months immediately before the date of the election; .......
The Court found that it was enough that the candidate had indeed informed his political party of his resignation in writing in good time. All in all, these cases sent out the warning that the IEBC will no longer go easy on politicians who may be tempted to hop from one party to the next as they please.
The Constitution hopes going forward, to raise the bar on the caliber of leadership elected to public service by requiring candidates to meet minimum standards of integrity, moral and ethical values, as well as relevant academic qualifications. Excerpts from Article 73 of Chapter 6 on Leadership and Integrity:
73. (2) The guiding principles of leadership and integrity include— (a) ....... election in free and fair elections;
99. (1) ........ a person is eligible for election as a member of Parliament if the person— (b) satisfies any educational, moral and ethical requirements prescribed by this Constitution or by an Act of Parliament; .......
Party candidates must promote unity and demonstrate personal principals by remaining faithful to the political party that sponsored them to a legislative body:
103. (1) The office of a member of Parliament becomes vacant— (e) if, having been elected to Parliament–– (i) as a member of a political party, the member resigns from that party or is deemed to have resigned from the party as determined in accordance with the legislation contemplated in clause (2); or (ii) as an independent candidate, the member joins a political party;
In fact the electorate has been given the power to recall a Member of either House of Parliament who betrays their campaign promises and fails to fulfill the people's aspirations and values:
104. (1) The electorate ....... have the right to recall the member of Parliament representing their constituency before the end of the term of the relevant House of Parliament.