Reprieve for politicians with deep pockets as funding cap dismissed

Politicians with deep pockets to spend have been given an upper hand after the High Court dismissed a petition that sought to cap their campaign funding and expenditure.

Justice Anthony Mrima declined to reinstate the Elections Campaign Financing (ECF) Act, ruling that the National Assembly was justified to reject the law as approved and gazetted by the Independent Electoral and Boundaries Commission for lack of public participation.

“There was no public participation in the enactment of the Elections Campaign Financing Regulations. I find that the National Assembly did not contravene the constitution in annulling and revoking the regulations which sought to limit campaign spending,” ruled Mrima.

Justice Mrima however ruled that Section 29 of the ECF Act which requires parliamentary approval of the regulations before gazettement was unconstitutional and that IEBC did not contravene any law by issuing the gazette notice to enforce the cap on campaign funding and spending.

According to the judge, there is no requirement to subject the spending limits to parliamentary approval and that the only mistake the commission did was the failure to subject the regulations to appropriate public engagement before gazettement.

“For that reason, I hereby call upon the IEBC to proactively and timely come up with the regulations as contemplated in Article 88(4)(i) of the constitution so that this country has in place the requisite regulations and the necessary spending limits during political campaigns,” ruled Mrima.

The electoral commission had in August last year gazetted the  Elections Campaign Financing Act which set the rules for contributions and spending for the forthcoming elections and submitted it to the National Assembly for approval.

Apart setting the limit each politician could spend during campaigns for a specific seat, the proposed regulations also required them to open bank accounts to channel campaign cash and surrender any excess money to the National Treasury or donate it to charities after the elections. 

The regulations also mandated IEBC to put a limit on contributions from a single source, paid-up media coverage and loans received by politicians to fund their campaigns.

However, parliament in September 2022 rejected the proposed regulations and annulled the gazette notice on account that the IEBC did not seek their involvement before approving and gazetting the Elections Campaign Financing (ECF) Act.

This prompted Katiba Institute and the Africa Centre for Open Governance (Africog) to file the petitions seeking to reinstate the regulations on account that the absence of the campaign financing rules would threatens the integrity of the August 9 general elections.

They argued that the absence of the regulations would create uneven playing ground where rich politicians with take advantage of their poor competitors and corrupt the voters to win elections.

Both the Attorney General and the National Assembly however opposed the petition and defended the move to annul the regulations on account that IEBC failed to subject them to public participation and gazette them at least one year before the general elections.

Justice Mrima in his ruling stated that although the regulations were statutory instruments and not constitutional instruments which needed parliamentary input before being applied, IEBC should have engaged the public before seeking to enforce them.

“Parliament may take part in the process of coming up with the limits by making their proposals during the public engagement and from the foregoing, it is the court’s finding in coming up with the spending limits, IEBC ought to have undertaken public engagement,” ruled Mrima.

He added that once the commission collects public views, the resultant limits are not subject to parliamentary approval but must come into force at least 12 months before the general elections.