A civil society organisation has raised the red flag over a section of electoral laws prone to abuse by political players.
Among provisions singled out by the Centre for Multi-Party Democracy (CMD) are those contained in the Election Laws (Amendment) Act 2016, the Election Offences Act 2016, and the Election Campaign Financing Act 2013.
With less than a year to the General Election, CMD says it is concerned by the loopholes in some of the laws and wants the new Independent Electoral and Boundaries Commission (IEBC) to prioritise crafting guidelines for their implementation.
Section 55 (B) 1(a) of the Election Laws (Amendment) Act 2016, is among those CMD says 'invite mischief’ and could affect credibility of the polls if there are no guidelines on its use.
According to this section of the Act, the Commission, may where a date has been appointed for holding an election, postpone the exercise in a constituency, county or ward, for such a period as it may consider necessary, where there is reason to believe that a serious breach of peace is likely to occur if the election is held on that date.
Multiple voter registers
“Which circumstances are these? We have previously had other reasons that could warrant a postponement of an election such as natural disasters. But when we talk about reason to believe there could be a serious breach of the peace, what threshold have we set to ensure such ‘reasons’ warrant postponement? It is also not clear for how long the election stands postponed,” says senior programmes officer Omweri Angima.
“One does not see any provision that obliges the Commission to verify such ‘reasons.’ Besides, matters to do with a breach of the peace are handled by security agencies and not the electoral commission. Ordinarily if there are such reasons, then the security agencies would be called in and the elections would continue. The danger of having such provisions without clear guidelines governing their implementation is that they can be used to serve partisan interests,” he adds.
CMD also takes issue with provisions in the Election Offences Act that touch on the voter register, which it says gives rise to fear of mischief by political players, if not well elaborated.
The Act makes it an offence for a person who without authority makes, prepares, prints or is in possession of a document or paper purporting to be a register of voters. Anyone found liable of committing such an offence is liable, upon conviction, to a fine not exceeding two million shillings or to imprisonment for a term not exceeding six years or to both. The offence carries a heavier sentence than that of multiple registration which would see one slapped with a fine of a million shillings or jailed for a year.
“This clause in some subtle way criminalises being in possession of the voter’s register but what is wrong with someone having a copy of this document and under what circumstances would they be having it? If possible it would even be better to have everyone have a copy of the register because this is one of the tools used by those campaigning to help them understand the demographics of areas they are targeting,” says Angima.
He argues that ideally, there should only be one principal register which would ordinarily be in the hands of IEBC. “Under what scenario can an individual purport to have a voters register? Ideally, this is a document that is in IEBC’s hands and if one were to get it then they can only get it from the electoral body, unless we are saying there are multiple registers,” he says.
The use of multiple voter registers is among issues that came up in a petition at the Supreme Court challenging the result of the presidential election in the 2013 polls.
Provisions in the Election Campaign Financing Act 2013 have also raised questions, with CMD calling for clarity on the definition of ‘anonymous sources.’
Section 13 of the Act provides that ‘a candidate, political party or referendum committee shall not receive and keep anonymous contributions or support whether in cash or kind. Such contributions, according to the Act, are to be reported and surrendered to the Commission within 14 days of receipt.
“Why should the money be surrendered to the electoral commission? Its also not clear if investigations will be done to verify the source of such funds. By forwarding the money to the Treasury are we saying its dirty money if used by the political party but okay its use by treasury?”
Questions have also been raised on the caps set by IEBC in determining how much candidates can spend in their campaigns.
According to the guidelines released by IEBC in August, candidates vying for the presidency can spend up to Sh 5.2billion. Aspirants for the Governor, Senator and Women Representative positions in Nairobi, for instance can spend more than Sh400 million in their quest to clinch the seats. Those seeking MP and MCA positions are allowed to spend between Sh10-33 million and between Sh66,000 and Sh2 million, respectively.
“Some of the limits, like those for the presidency, are abnormally high and create an uneven playing field. How many people can afford to spend Sh5 billion on a campaign? Where is such money coming from and what is it being spent on?” poses Angima.
The caps have been criticised by Opposition leader Raila Odinga saying it was akin to reducing the country’s leadership to an auction where the highest bidders are favoured.
CMD’s Kennedy Masime also says the process of arriving at the caps should be more participatory where all stakeholders are involved in coming up with a clear formula in setting the campaign spending limits.
