Irony of Kenya’s campaign laws that can barely scratch surface

The unfolding political campaign season is turning out to be a dazzling show of might and flamboyance, the most visual and dramatic symbol being that of the helicopter.

A story in The Standard last month revealed how the Kenya Civil Aviation Authority (KCAA) has registered at least 50 helicopters, with some aspirants even adorning them with bespoke branding.

Hiring a helicopter costs at least Sh150,000 an hour; assuming a candidate wants to use a chopper for three hours every weekend between now and the August General Election, they would have spent Sh4 million on helicopters alone by the time the election is done and dusted.

But even that is a tiny drop in the ocean compared to the Sh5 billion that it takes to run a “serious” presidential campaign, according to former secretary-general of The National Alliance (TNA) Johnson Sakaja, now vying for the post of Nairobi senator.

Majority of the budget goes to merchandise, advertising, transport, event organising, strategy and campaign operations, as well as – in the case of Uhuru Kenyatta and William Ruto’s 2013 campaign – international public relations teams and a digital strategy.

That elections are expensive in Kenya is common knowledge, but with all the figures thrown about, it may be difficult to conceptualise just how much Sh5 billion is.

Let’s put it this way – if you spent Sh100,000 every single day, January to December, it would take 137 years to fully deplete Sh5 billion. It’s a truly gargantuan amount.

There have been attempts to curtail election spending and regulate campaign financing. Towards the end of last year, the Independent Electoral and Boundaries Commission (IEBC)’s attempt to implement the Electoral Campaign Financing Act was roundly rejected by political parties and a parliamentary committee, and later suspended by the High Court.

IEBC’s directive required political parties — and all candidates — to provide the commission with their campaign bank account details, provide names of their campaign team members who would be signatories to the account, provide their books for inspection to the IEBC, and submit a final expenditure report three months after the General Election. That was evidently too onerous for Kenya’s political class.

Excellent laws

The law’s implementation status remains unclear, but it is only one of the numerous excellent laws that the country has on election campaign financing – at least on paper.

In law, there is direct public funding for electoral campaigns, through the Political Parties Act. In the 2014/2015 financial year, The National Alliance received Sh89.3 million, the Orange Democratic Movement Sh87.4 mllion and United Republican Party Sh28.2 milliom on the basis of their respective strength in Parliament.

Kenya’s laws go further than most in Africa, shows a comparative report that 54 countries around the world on the state of campaign financing, both in law and practice.

The Money, Politics and Transparency report by governance non-profit Global Integrity gives Kenya a score of 62 out of 100 in election laws – that’s higher than Botswana, Ghana and South Africa.

The Elections Act and Political Parties Act ban anonymous contributions, whether in cash or in kind; a candidate or political party is not supposed to receive more than 20 per cent of their funding from a single source; no one person or organization shall, in any one year, contribute to a political party an amount exceeding 5% of the total expenditure of the political party.

Under the Political Parties Act 2011, the Registrar of Political Parties may at any time request the Auditor General to carry out an audit of the accounts of a political party, and those in violation may be de-registered.

But in practice, the reality is far different – so different, that Kenya has the dubious distinction of having the biggest gap between what election laws say, and how they are practiced among the 54 countries sampled in the Money, Politics and Transparency data.

Of a maximum 100, Kenya receives a score of 62 on laws, but just 18 on practice.

“Legal frameworks may exist, they fail to correspond with de facto realities... In Kenya, existing laws on political finance are frequently ignored, and as a result, the size of the disjunction is huge relative to other countries in the sample,” the report states. In practice, very little enforcement occurs, and no sanctions were imposed during the 2013 elections, despite IEBC having the authority and mandate to do so.

Failed

The report paints a damning picture of the IEBC’s performance in the last general election, that not only failed to set campaign finance ceilings, but also chose to only passively monitor party nominations and failed to intervene even when gross violation of electoral laws took place.

The commission also failed to reign in abuse of public resources and vote buying despite the powers conferred upon it by laws.

Still, even this might be too late. Campaigning for the next election in Kenya starts right after voting, and money is distributed throughout the electoral cycle. In fact, by the time the official campaign period is declared, the critical campaigning has happened.

Still, that’s not the whole story. In the report, violations of existing laws seem to be the norm for nearly all countries in the sample, not the exception - scores on the “practice” indicator are very frequently lower than those on the “law” indicator. In fact, only four countries – Uruguay, Trinidad and Tobago, Rwanda, and Germany – avoided any violations during the most recent elections.

But in Rwanda, for example, the absence of violations is evidence of weak legislation and of lack of competition, not of effective enforcement. There’s almost a complete absence of restrictions on contribution and expenditure during election campaigns; other regulations, including formal reporting requirements, are also sparse.

But there is also almost no real political competition, the playing field is dominated by the ruling Rwanda Patriotic Front (RPF), so there are few incentives or opportunities for violations. In essence, electoral authoritarianism is entrenched, thus one should not conclude that Rwanda’s regulation of campaign finance is high, or that the political contest is “clean”.

The data shows that the “democracy race” does not always go to the swift. Botswana is another good example, a country that almost always comes out glowing in rankings to do with peace, democracy and freedom, a star performer in governance and perceptions of corruption.

But in this measure of electoral finance, Botswana turns up dismal scores – just 23 in law, and 13 in practice.

No direct or indirect mechanisms of public funding exist, and non-financial state resources are regularly abused during campaigns, the MPT data shows. Restrictions on contribution and expenditure exist, but are so outdated that the Independent Electoral Commission (IEC) has not enforced them for many years.

Still, Botswana is frequently lauded for its stability, economic growth, democratic practice and good governance. At its independence in 1966, Botswana was the world’s third-poorest country with a per-capita GDP of just $70. Today, it has expanded dramatically to $16,377.

Political consensus

Botswana has been successful in the post-colonial nation-building project in some ways, but like Rwanda, the ruling party is entrenched – the Botswana Democratic Party (BDP) has been at the helm since 1966.

It suggests that there is some kind of political consensus in the country that defers competition to within the party ranks, not across party lines. And in some ways, you could argue that Botswana’s “stability” has never really been tested, considering the 50-year dominance of the BDP.

The MPT data shows other interesting gaps, such as in Sweden, Australia and the UK, where the country scores on practice are actually higher than on law – hence a negative result when the two are subtracted.

Until the passage of a new bill in 2014, Sweden had very little formal legislation on the books to govern political finance.

Despite this lack of codified regulation, parties and candidates informally agreed to present some of their financial information to the public in accessible formats. As such, the public and media had easy access to officially published party financial details. In the UK, there are no specific laws against the use of state resources during campaigns, such as cars, staff and buildings – yet none were used in practice, according to the data.

It suggests that even in the absence of tight political finance regulation, political norms and traditions can more than compensate for the same. In these contexts, specific bans do not appear to be necessary due to prevailing political norms.

Why does Kenya have a plethora of laws that it expertly drafts, and then enthusiastically ignores? And why do some other countries have hardly anything on paper, but their practice is far above and beyond?

Kenya’s case may have to do with the intersection of political versus economic opportunities – political office is attractive because there are too few economic opportunities elsewhere in the economy.

Where there are more economic than political opportunities – such as in Sweden and the UK – there are many ways to be reasonably successful, even with a modest job such as being a teacher or truck driver.

Informal sector

Despite having the skills to do better, the vast majority of working Kenyans are in the informal sector. Out of a workforce of 15.1 million, about 84 per cent are in some kind of informal employment - often in a low productivity and low value job that does not square with their education and potential.

It means that politics itself is overrepresented as a path to financial security, both to create and defend wealth – only because there is a structural failure of other avenues, and institutions are weak.

Still, Kenya’s highly educated and well trained workforce – at least relative to many other African countries – means that there is a whole cadre of skilled workers in legal departments who must have work to do, fuelled by the legions of stakeholders, non-profits and NGOs that do the work of ‘good governance’ in its various forms, and sustained by the ‘seminar circuit’ and ‘conference economy’.

The whole thing then condenses a strange equilibrium where laws are written, then trashed, then keep getting written.

- Christine Mungai is a writer, journalist and executive editor of Africa data visualiser and explainer site Africapedia.com, and a 2018 Nieman fellow at Harvard University.

@chris_mungai