Ensure that political party constitutions are aligned with the law

When Chief Justice Martha Koome presented instruments of office to Samuel Nderitu after the launch political parties disputes tribunal decentralization plan. [Edward Kiplimo, Standard]

Any democratic society relies on political parties to function, serving as a platform for citizens to engage with the political process, voice their opinions, and influence who forms a government based on their manifestos and popularity. Political parties are the foundation of Kenya's democratic system, shaping its political, social, and economic development.

Article 81 of the Constitution lays down principles underpinning our politics, including freedom for all to participate in politics, gender representation and representation of persons with disabilities, and universal suffrage. The Constitution further demands free, fair and transparent elections through secret ballot, conducted by an independent body. The elections should be free from violence, intimidation, improper influence, or corruption.

Political parties have struggled over the years to uphold the above principles. In Kenya, winning a party nomination in areas where a party has dominant support is as good as winning your National Assembly, MCA, Senator, Woman Representative, or Governor seat. In the same breath, political parties are often seen as personal vehicles of political figures to consolidate support and gain power devoid of any political ideology.

As such, party nominations are a highly contested political stage leading to general elections. In Kenya, the nomination processes, internal complaints handling processes, appeal and review processes, Political Parties Dispute Tribunal (PPDT) mechanism, and court processes are dealt with under the Political Parties Act (PPA).

In 2022, the PPA was amended before the general elections, as has become the custom in Kenya. The amendments just before the 2022 general elections were mainly geared towards forming coalition political parties, distributing the political party fund, allocating special seats, and dispute resolution mechanisms.

The last amendments came very close to the general elections leading to confusion and complications concerning party nomination processes, including nominating persons for "special seats". In some areas, there have been cases of political parties switching names for special seats at the expense of those who genuinely qualify for the constitutional classifications (youth, PWD, or marginalised) and replacing them with those who do not qualify. Some counties have been criticised for never giving women special seats at the county level despite the requirement that all nominee lists alternate between men and women.

A major setback in last year's nomination process was confusion between what the PPA meant as direct nomination and indirect nomination and what the political parties understood these concepts to mean. According to the PPA, direct nomination means a party nomination process where the people directly choose the party nominee through universal suffrage or elections by registered members. However, most party constitutions describe direct nomination as the party's direct selection of a candidate - without holding elections.

On the other hand, indirect nominations are when a political party establishes a process for selecting a candidate, such as interviewing candidates and formulating criteria for scoring and choosing or selecting a candidate based on delegates from registered members.

The PPDT and the courts have also clarified that legally, a party cannot purport to hold an opinion poll or merely have a process for consensus building among candidates. In their view, the process must adhere to the Constitution's and PPA's ideals. In most political party constitutions, consensus building and polls remain. To avoid confusion, parties should align their constitutions with the law.