Political Parties System Under the New Constitution
Ideology. Integrity. Issues
All political parties must seek to promote the objectives and principles of the Constitution of Kenya 2010 and the rule of law.
All political parties must adhere to the principals of internal democracy, inclusiveness, equality, non-discrimination within the framework of law.
Every political party in Kenya must be driven by values of honesty, integrity, accountability, transparency, ethics, etc.
Terms of registration essentially spell out the same vision, mission and values for all political parties irrespective of ideology, promise or pledge.
If politics be the pursuit of power, then political parties are the standard means to that power. Political parties exist to provide a common and united platform for like-minded political players to pursue State power and to exercise that power once elections are held. Thus political power can be exercised by the ruling party and coalitions or by the official opposition party and coalitions. Having said that though, the Constitution of Kenya 2010 has made room for the political participation of independent candidates.
As noted in the earlier introduction, the New Constitution has sought to streamline the often-chaotic world of Kenya's political parties. Most political parties in Kenya do not hold a long-term view of politics persuasion. Rather, they remain in a semi-comatose mode for much of the time only to come alive during an election year. Most hinge their survival on a larger-than-life party leader or personality, and have little to show for ideology and mobilization. "....... political parties are mere marketing brands for ethnic mobilisation for votes. They are invariably re-branded as need arises at every general election ....... Thus general elections ....... are essentially an ethnic census; won or lost on the ethnic combinations achieved by influential individual politicians". (Kiriro wa Ngugi, 2012).
New laws that define the playing field for political parties have come into play and will be enforced by the office of the Registrar of Political Parties RPP. Accordingly, all political parties must register anew and fully comply with the Political Parties Act 2011 to qualify for funding and to participate in an election. They must streamline their composition, membership and nomination rules and practices in compliance with the tenets of democracy and good governance. These far-reaching political, civic, and social changes aim to level the political field, expand that field and choice, and transform the content and delivery of political agenda, as well as raise the quality and integrity of the elected. In a nutshell, to set the foundation for a mature and progressive political space.
During the seventies and eighties, Kenya was under the single-party rule of the Kenya African National Union, KANU. Only until 1991 did the country revert to a multi-party democracy upon the repeal of section 2A of the Old Constitution. This repeal did not come easy and was the culmination of internal struggles and external pressure on the then government of KANU. Since then, Kenyans have embraced multi-party democracy as an important ingredient of democracy, freedom of political association and thought, and the periodic conduct of credible elections. Out of hindsight and the painful lessons of the past multi-party democracy has been anchored in the New Constitution. Chapter 2 - The Republic:
4. (2) The Republic of Kenya shall be a multi-party democratic State founded on the national values and principles of governance referred to in Article 10.
Political parties therefore, are in a sense, a tool by which the people of Kenya hope to enjoy their rights to good governance all round - a reflection of their shared universal belief that multi-partyism is an enhancer of democracy and enabler of the people's right to participate in the internal affairs of their country. Under the single-party rule of the 70s and 80s, KANU had become the all-knowing, all-wise, benevolent, and controlling party which strode across all the three arms of government to stifle free-will and to frustrate democracy and justice. The Constitution of Kenya 2010 has sought to go full-throttle on changes that deliver a complete turnaround of the laws governing political parties to return control of politics to the people. To borrow from an old saying: political parties are established to serve the people and not the people to serve political parties.
Every political party that hopes to be duly registered and remain so, must desire to see, within the shortest time possible, a Kenya in which all live in a democratic and just society governed by the national values and principals of governance as enshrined in the New Constitution:
91. (1) Every political party shall— (g) promote the objects and principles of this Constitution and the rule of law; .......
The vision of every political party must therefore be to unite the people of Kenya towards the same goals and aspirations:
91. (1) Every political party shall— (a) have a national character as prescribed by an Act of Parliament;
Adherence to Article 91. (1) is a work in progress as clearly, the party coalitions that formed for the 2013 elections were largely brought together by the marshaling of ethnic regions. "....... aimed at crafting winning combinations based entirely on ethnicity" (Kiriro wa Ngugi, 2012).
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).
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.
The introduction of new electoral rules governing political parties means that all existing political parties must seek fresh registration with the office of the Registrar of Political Parties RPP. The Registrar of Political Parties RPP is the only body mandated by the New Constitution to register a political party, to monitor its conduct and to certify that the party and its candidates are free to participate in an election.
It is important to mention here that the ruling of the Court referred to earlier that compelled the IEBC to push back the date of a by-election for Mathare Constituency in order to include the name of an independent candidate who had been barred from contesting the by-election by the Commission, also found that the law that granted the Office of the RPP to receive and hold the official register of the members of a political party was unconstitutional. The Court's ruling affirmed that a written resignation from a party by a member was enough in law to effect the action which did not require the compliance of the RPP to do the same especially where the party failed to inform the RPP of the resignation.
The terms of registration are designed to deliver the aims and aspirations of the people of Kenya; indeed, political parties are by default, necessary facilitators of democratic ideals. These registration terms essentially spell out the same vision, mission and values for all political parties irrespective of ideology, promise or pledge. After all, all political parties lay claim to the same clientele - the people of Kenya. These terms of registration are provided for in the Political Parties Act No 11 of 2011.
The full official list of duly Registered Political Parties in which we highlight key and relevant information and data that is pertinent to the New Constitution and the Political Parties Act No 11 of 2011 will be made available with time once we have the data from the Office of the Registrar of Political Parties.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. Ongoya, Z Elisha and Otieno, Wilies E, (2012) "Handbook on electoral laws and systems in Kenya". Electoral Institute for Sustainable Democracy in Africa (EISA).
3. Ngugi, K wa (2012). "Why this country needs to go beyond tribal arithmetic and construct a vision." Daily Nation Opinion. Accessed December 28, 2012.
4. Oduor, R (2011). "Ethnic Minorities in Kenya's Emerging Democracy: Philosophical Foundations of their Liberties and Limits", a thesis submitted in fulfillment of the requirement for the degree of Doctor of Philosophy at the University of Nairobi.
5. Full Judgment on Dispute Resolution on County Assembly Nominations. Website of the Independent Electoral and Boundaries Commission. Accessed August 2013.
6. Political Parties Act No 11 of 2011. National Council for Law Reporting. The Attorney General.
7. The Elections Act 2011. National Council for Law Reporting. The Attorney General.
8. William Omondi v Independent Electoral & Boundaries Commission & 2 others  eKLR. National Council for Law Reporting. The Attorney General.
9. Union of Civil Servants & 2 others v Independent Electoral and Boundaries Commission (IEBC) & another  eKLR. Petition 281 of 2014 & Petition 70 of 2015; consolidated on 11th March 2015. National Council for Law Reporting. The Attorney General.