The Presidential Electoral System Under the New Constitution

 

 

Integrity. Leadership. Popular

 

Content
Introduction

Qualification and Leadership

To be qualified to run for a member of Parliament is to be qualified to run for President.

 Nomination to Run

A candidate must be nominated by at least 2,000 voters in at least 24 out of the 47 Counties; via a political party or as an independent.

Election System

The President is elected by popular vote. However, the winner must secure the popular vote i.e., garner more than half the votes cast, and secure 25% of the vote in at least 24 Counties.

 

Presidential Aspirants for 2013

(Click the above link to see the list of those officially gazetted to run for election.)

The List consists of seven men and one woman. It also had four main coalitions and no independent candidate.

 

Introduction

 

The Presidency enjoyed wide-ranging, almost unlimited executive powers under the Independence Constitution. Excerpts from Chapter 2 - The Executive, Part 3 - Executive Power,  

23. (1) The executive authority of the Government of Kenya shall vest in the President ........

Indeed, the President's actions and authority were not to be questioned by anyone or shared by any other democratic institution:

24. Subject to this Constitution and any other law, the powers of constituting and abolishing offices for the Republic of Kenya, of making appointments to any such office and terminating any such appointment, shall vest in the President.

25. (1) Save in so far as may be otherwise provided by this Constitution or by any other law, every person who holds office in the service of the Republic of Kenya shall hold that office during the pleasure of the President ........

These and other Constitutional provisions ensured that the Presidential race took center-stage at every election. The (mis)use of Presidential powers has often generated plenty of disenfranchisement and political tensions, as they were frequently used to buy and reward loyalty. The people of Kenya via the New Constitution have sought to tone down the importance and powers of the Presidency by introducing the concept of devolution, by re-assigning powers of the Presidency to Commissions and Independent Offices, and by giving the National Assembly the oversight role of vetting appointments to State Offices, etc. Indeed, the New Constitution vests executive power to a Cabinet rather than to an individual. Excerpts from Article 130 of the Constitution of Kenya 2010's Chapter 9 - The Executive, Part 1 - Principals and Structure of the National Executive:

130. (1) The national executive of the Republic comprises the President, the Deputy President and the rest of the Cabinet.

Having said that though, old habits die hard and the 2013 Presidential race in Kenya promised to generate as much (if not more) interest than in previous races. Campaigns were both vigorous and rigorous. As is the habit in all our discussions in this website, we begin our survey and analysis of the Presidential Race by examining what the Constitution of Kenya 2010 has to say about it.

 


 

 

Qualification and Leadership

 

The really important qualification to run for President of Kenya is that one is qualified to stand for election as a member of Parliament. Part 2 - The President and Deputy President, excerpts:

137. (1) A person qualifies for nomination as a presidential candidate if the person— (b) is qualified to stand for election as a member of Parliament;

Therefore, in order to discover what it takes to run for President we must examine what the Constitution says on the qualifications to stand as a member of Parliament. Excerpts from Chapter 8 - The Legislature, Part 2 - Composition and Membership of Parliament, Article 99:

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; .......

More on this and other requirements for candidature can be found under the discussion on values (integrity and ethics) in the Political Parties System Under the New Constitution link. Of course, criminal guilt makes for sufficient reasons for disqualification from the Presidential race:

99. (2) A person is disqualified from being elected a member of Parliament if the person— (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.

Notwithstanding the assumed guilt described by Clause (2), the aspiring candidate can still run for office pending an appeal.

99. (3) A person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted.

The Ethics and Anti-corruption Commission was expected by many, to play a key role in the 'vetting' of candidates desirous of standing for President (and other electoral seats) in 2013; that they (the candidates) fulfilled the requirements of Chapter 6 on Leadership and Integrity, excerpts:

79. ....... ethics and anti-corruption commission, ........ for purposes of ensuring compliance with, and enforcement of, the provisions of this Chapter.

80. ........ (c) providing for the application of this Chapter, with the necessary modifications, to public officers; and (d) making any other provision necessary for ensuring the promotion of the principles of leadership and integrity mentioned in this Chapter, and the enforcement of this Chapter.

The Political Parties Act 2011 also espouses leadership and integrity guidelines to be followed in the nomination of Presidential candidates. So too does the Independent Electoral and Boundaries Commission Act, 2011. These Acts of Parliament (and others) have been empowered by Article 99.

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; ........

Only an incumbent President, Deputy President or Member of Parliament is exempted from giving up their public office in order to qualify to run for the Presidency. The same, of course, is not applicable to other Public Officers:

137. (2) A person is not qualified for nomination as a presidential candidate if the person— (b) is a public officer, or is acting in any State or other public office.
(3) Clause (2) (b) shall not apply to— (a) the President; (b) the Deputy President; or (c) a member of Parliament.

 


 

 

Nomination to run for President

 

To run for the office of the President of Kenya, a candidate must be nominated by at least 2,000 voters in at least 24 out of the 47 Counties. The candidate can run as an independent.

137. (1) A person qualifies for nomination as a presidential candidate if the person— (c) is nominated by a political party, or is an independent candidate; and (d) is nominated by not fewer than two thousand voters from each of a majority of the counties.

 

 


 

 

Electoral System for President

 

During the constitution review process there were significant calls to separate the dates of the Presidential race from those of the other electoral seats. That suggestion was made in the belief that if the race took place at a different time, it would not generate the kind of unpleasant political and social tensions that have surrounded previous general elections. Despite those appeals, the Constitution of Kenya 2010 provides for elections for the Office of the President to be conducted on the same day as the elections for other political seats.

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 election of the President of Kenya is by popular vote. 

136. (1) The President shall be elected by registered voters in a national election .......

138. (3) In a presidential election— (a) all persons registered as voters for the purposes of parliamentary elections are entitled to vote;

Although Kenya's electoral system is by popular vote, in order to be declared the winner of a presidential election, a candidate must obtain a specified minimum number of votes, as well as a specified minimum distribution levels of those votes. In other words, the President-elect must enjoy both popular and wide support in the country. The first requirement is that the candidate must garner at least 50% plus one, of the presidential votes.

138. (4) A candidate shall be declared elected as President if the candidate receives— (a) more than half of all the votes cast in the election; ........

It is therefore not enough to poll the highest number of votes: the winner must enjoy popular support. In the March 2013 General Elections, Uhuru Kenyatta was declared the winner in a tight race after he garnered 50.5% of the total votes cast. In one past election after the reintroduction of multi-party politics, the declared winner had barely garnered more than 35% of the vote! "In 1992, Moi won the presidency with 36 per cent of the total votes cast compared with the remainder, 64 percent, of the combined votes for the opposition. Since the electoral process had no threshold requirement for the winner to attain at least 50 per cent + 1 of the vote, Moi was declared president" (Oloo, 2011).

The author wishes to mention here that a petition was lodged in the Supreme Court seeking interpretation of the meaning of 'all the votes cast' as written in Article 138. (4) above, because the vote tally announced by the IEBC included rejected votes. The Court ruled that rejected votes cannot "...... include ballot papers, or votes, cast but are later rejected for non-compliance with the terms of the governing law and Regulations......."

As recently as 2007, the declared winner had only 46 per cent of the votes while his closest challenger had 44% of the votes - meaning 54% of the presidential vote went to others other than to the winner.

Under the the second requirement that strives to ensure that the President-elect enjoys wide support, the declared winner must garner at least 25 per cent of the vote in at least half of the counties. 

(4) A candidate shall be declared elected as President if the candidate receives—  (b) at least twenty-five per cent of the votes cast in each of more than half of the counties.

This requirement takes cognisance of population numbers as varying widely between Counties. It is therefore intended to give the country a President who is popular in both the 'big' and the 'small' Counties. Both the winner and runners up in the March 2013 General Elections garnered more than the requisite 25% in 24 Counties. 

 


 

 

Presidential Candidates

 

The following Candidates were on record as having publicly expressed their intentions to run for the office of the President of the Republic of Kenya in the March 2013 General Elections:

Raphael Tuju, Eugene Wamalwa, Uhuru Kenyatta, Raila Odinga, Moses Wetangula, Martha Karua, Mutava Musyimi, Wakoli Bifwoli, Kalonzo Musyoka, Peter Kenneth, James Ole Kiyiapi, Musalia Mudavadi, William Ruto, Paul Muite and Mohamed Dida.

However, some of these candidates pulled out of the race, while others formed pre-election party coalitions and hence the list of those officially cleared to run and gazetted by the Commission whittled down to just eight, seven men and one woman.

The Constitution of Kenya 2010 requires that every one of the candidates must nominate a running mate. Chapter 9 - The Executive, Part 2 - The President and Deputy President:

148. (1) Each candidate in a presidential election shall nominate a person who is qualified for nomination for election as President, as a candidate for Deputy President.

The list of the eight (8) candidates, their running mates and coalitions where applicable, is discussed under the Presidential Aspirants for 2013 link.

 

 

 

References:

1. The Constitution of Kenya Revised edition 2008 (2001). National Council for Law Reporting. The Attorney-General.

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

3. Oloo, A (2011). "Elections, Representations and The New Constitution". Society for International Development, SID Working Paper 7.

4. Political Parties Act, 2011. National Council for Law Reporting. The Attorney-General.

5. Ethics and Anti-Corruption Act, 2011. National Council for Law Reporting. The Attorney-General.

6. Website of the Independent Electoral and Boundaries Commission IEBC.

 7. RAILA ODINGA & 5 others v INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 3 others [2013] eKLR. Petition 5, 3 & 4 of 2013. National Council for Law Reporting. The Attorney-General.

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