Electoral Preparations

Opinion Survey

A joint Infotrak Research and Consulting and CMD-Kenya opinion survey found that an overwhelming majority of Kenyans understand the constitution and that they supported their political parties on the basis of their policies and perception of internal party unity. The majority will not vote for independent candidates and they maintained that the next general election must take place August 2012 in accordance with their understanding of constitutional provisions. Orange Democratic Movement [ODM] leads as the party with most supporters and it is the most trusted.

Workshop on the implications of the Constitution of Kenya (Amendment) Bill, 2011

The workshop was aimed at un-packing the proposed amendments to the Constitution, tabled in Parliament on Wednesday afternoon 9th November 2011. The three main areas covered by the Amendment Bill are the review of the elections date, gender requirement and the creation of 80 new constituencies: The cabinet bill combined these diverse areas and proposed to change the elections date from the second Tuesday in August to the third Monday in December, of every fifth year instead of the second week of August.

Political parties resolved that the August 2012 date was too soon to meet the legal timelines such as delimitation of electoral boundaries, voter registration, voter and civic education and other operational imperatives. An election in August 2012 is only possible if the current Parliament is dissolved in June, 2012 or 60 days to Election date.

There was general agreement that next general election would be unique and it should be treated as a transitional election which will usher in the new constitutional dispensation. The decision on the election date is also dependent upon the current political realities namely the existence of the National Accord and Reconciliation Act 2008 and the current Parliament both of which have been saved by the transitional provisions in the constitution.

The merits and demerits of changing the Constitution so soon after its promulgation were deliberated on and different views expressed by the parties: Some were of the opinion that that changing the constitution so soon after its promulgation would open a Pandora's box for further amendments by the current Parliament which might take the opportunity to bring in self serving amendments not necessarily in line with the spirit of the constitution. Others felt that the omission by the Committee of Experts to prescribe the mechanisms for realising that not more than two thirds of one gender would occupy elective position could hardly be cured through legislation and constitution amendment was therefore inevitable.

The amendment seeking compliance with the not more than two thirds same gender in elective and appointive positions principle is enshrined in Articles 27 (8) and 81 (b). The Amendment Bill seeks to give lasting solutions to the issues of gender parity and equity in the national assembly and the senate. The Bill proposes to amend Articles 90, 97 and 98, in order to allow political parties to top up any deficit from a general election through party-list based proportionate representation.

It was broadly held that once the amendment are done, they will entail that the size of the National Assembly and the Senate be expanded to allow the realization of the not more than two-thirds same gender principle. The further implication is that the size of the Parliament will be determined after a general election and the size of Parliament will keep changing depending on the number of men and women elected during the general elections. Assuming a worst case scenario in which one gender takes all seats in a general election, the size of the national assembly can be as large as 444 members while that of the Senate may grow to over 70 representatives. The constitution provides for 349 members of the National Assembly and 67 members of the Senate respectively.

Workshop to deliberating on the ways and means of implementing Article 10 of the Constitution

45 representatives of 25 member political parties attended a workshop to deliberate on issues relating to implementation of article 10 of the constitution. The objective of the workshop was to grapple with these universal but complex concepts which form part of the national values and principles of governance and appreciate the need for a realistic approach towards interpreting the requirements under these headings.

Article 10 of the Constitution provides that national values and principles of governance shall bind all state organs, state officers [follow link], public officers, and all persons whenever any of them, applies or interprets the constitution, enacts, applies or interprets any law or when [one] makes or implements public policy decisions.

The national values and principles of governance include patriotism, national unity, sharing and devolution of power, rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, and protection of the marginalized.

Others include good governance, integrity, transparency, and accountability and sustainable development.

These national values and principles are clearly timeless. The practical challenges of interpreting, breaking down and properly applying these values and principles is awesome shall form part of the political and social discourse at all times during the life of this constitution. The workshop attempted to point at broad parameters within which the values and principles could be implemented and tried to unravel the intentions of the constitution by deliberated on what they mean in practice. They shared examples of activities, acts of omission or commission which may or may not be construed to be in line with the provisions and concurred on the inherent risk of trivializing or watering down these fundamental provisions since the values and principles would mean different things to different people at different times. It was therefore important that consensus be built around common interpretation primarily through legislation and also through other means as well. This will prevent misunderstandings, self serving interpretations, distortions, manipulations and other unintended outcomes.

Workshop on How to Develop a Party List on Friday 28th October 2011

46 representatives of member political parties held a knowledge sharing workshop on how to prepare party lists. For the first time in Kenyans electoral history, several seats will be filled through the party list, in proportion to the number of seats a party garners during the previous general elections. These are the seats that have been set aside in order to ensure gender balance, representation of special interests and marginalized groups. 12 special seats and 16 women seats will be filled through party list in the National Assembly and the Senate respectively, and an unknown number of seats will be added to both the National Assembly and Senate depending on the number of men and women elected to both houses in order to ensure that not more than two thirds of one gender occupy elective positions. Already the constitution provides that County Assemblies will be expanded to ensure that there is the requisite gender balance.

The parties were exposed to different types and methods of preparing party lists. Parties will be required to submit lists of qualified persons to fill the reserved seats to the IEBC at least 45 days to the election date. Each party will assume that they will win all the contested seats and therefore qualify to be allocated all the party list seats. For example, each party will assume that it will win all the 47 seats in the Senate and therefore qualify for all the 16 seats reserved for women and prepare a list of 16 candidates in order of priority. Once the election results are announced, each party will be allocated the number of seats in accordance to the number of seats won. If a party wins half of the 47 Senate seats, it will be allocated half or 8 of the reserved seats and their 8 top candidates will qualify to become Senators.

The constitution provides for 'Closed Party Lists' which cannot be altered once they have been submitted to the IEBC at least 45 days to the general elections. Parties noted that the composition of party list candidates could be used as a campaign tool hence the need to develop fair nomination rules and regulations to ensure that the 'right people' get to the party list in the right priorities. Preparation of rules and regulations with details on the procedure for identifying party list candidates will also serve as a useful dispute resolution mechanism.

Workshop on the provisions of the Campaign Financing Bill, 2011

47 representatives from 25 political parties attended a workshop on Campaign Financing Bill 2011. This is the first bill of its kind and it attempts to address issues related to corruption in political party and/or campaign financing, to prevent the abuse of state resources in campaigns, to control private donations and to regulate the media's role in campaigns. It is also intended to put caps to the amount of money and resources which candidates and political parties will be allowed to spend during campaigns. The bill if enacted into law would limit the impact of money on elections and increase accountability of political parties to their members.

The aim of the workshop was not only to share the contents of the Bill but also to appreciate the complex issues of campaign financing within Kenya's legal framework and political practice. The participants were systematically taken through enforcement mechanisms and cross reference to Elections Act 2011 and Political Parties Act 2011. Campaign Financing Bill, 2011 therefore aims at promoting transparency, and accountability in all electoral matters and to create level playing field for all candidates and political parties during elections.

The link between the practice of spending large amounts of money in campaigns and corruption in political governance was explored and their implications on governance. Other issues deliberated upon included the distortions resulting from misuse of public resources, the possibility of 'dirty ' money from drug traffickers, human traffickers, pirates, terrorists and arms dealers finding its way into electoral campaigns.

Future interventions will focus on development of realistic campaign spending limits.

Review of Legal and Electoral Instruments

In 2011, a bilateral facility was set aside for member political parties on bilateral basis. Political parties applied for funding to review their internal structures and to formally devolve some of the decision making responsibilities to the 47 counties. The facility was also intended to support parties in developing nomination rules and regulations as well as mechanisms for preparing party lists. The facility would also be utilized to set the criteria for identifying persons who meet the integrity requirements spelt out in the Constitution of Kenya 2010 [Constitution] to elective offices and serve as instruments for dispute resolution during party nomination processes.

The Elections Act, 2011 provides stiff penalties for parties which nominate persons who do not subscribe to national values and principles of good governance as provided for in Article 10 of the Constitution. Article 72 [2] of the Elections Act, 2011 provides that 'a political party which knowingly nominates a candidate who does not meet the requirements of the constitution shall be disqualified from nominating a candidate to contest in that election or in the next election in that electoral area'. Parties therefore need to be very clear on the requisite constitutional requirements.

Only four political parties i.e. Party of National Unity [PNU], Kenya African National Union [KANU], National Labour Party [[NLP], and Social Democratic Party [SDP] did not apply for their share of the facility.

Workshop on Timelines towards 2012 General Elections

50 representatives of member political parties met to deliberate on processes, pace and outcomes of ongoing reforms leading to the 2012 general elections. They were particularly concerned with the confusion over date of next general elections which will negatively affect the ability of parties to prepare for the milestone event. The workshop particularly focused on issues relating to timelines towards the 2012 general election and resolved that the August 2012 election date was not practical as the newly established Independent Electoral and Boundaries Commission [IEBC] will need four months to create 80 new constituencies and to delimit boundaries for 290 constituencies countrywide. The same period will be used to identify about 1500 wards; down from the current 2800 local authorities' wards since each constituency will have between 3 and five county assembly wards. After the delimitation of electoral boundaries, The IEBC will subsequently embark on voter registration for 90 days before embarking on civic and voter education. These activities cannot be finalized before dissolution of Parliament which must take place 60 days to Election Day. These activities must take place within legal timelines which run right up to August 2012. They will then be followed by declaration of the official election period which means that a general election can only take place after August, 2012.

Revised Timelines as per the Electoral Laws

We attach here the possible Electoral Timelines Towards the next General Elections which indicates that the next general elections could take place in 2012. The provisions of the electoral laws, relating to election preparations in the Independent Electoral and Boundaries Commission Act 2011[IEBC], The Elections Act, 2011 and the Political Parties Act, 2011, can be met within the next few months in a build up to the next general elections.

The Independent Electoral and Boundaries Commission [IEBC] released its report on delimitation of boundaries on 8th March 2012. The IEBC created 80 new constituencies and identified 1450 county wards countrywide.  The IEBC rejected the recommendation of Parliament to create an extra 100 county words and advised that any aggrieved persons may approach the High Court within the next 30 days and rulings on all suits challenging the names of electoral units and boundaries must be determined in the subsequent 30 days. This means that there is a sixty day window to ventilate on issues relating to electoral areas and boundaries.

After settling the issues relating to electoral boundaries, The National Voter Registration exercise will commence and it must be completed within 90 days. A large number of youth do not have voters’ cards because the Department of Registration of Persons did not issues new identity cards for over two years due to internal difficulties. Civil registration has now resumed and it is expected that the youth, who comprise the majority of the Kenyan Population will claim their right to vote through voter registration.

Depending on the Election Date, the IEBC will declare a 90 day mandatory Elections Period which will culminate in Election Day itself. The main issue, however, remains the lack of clarity on the election date. The high court ruled that the next general election may take place by June 2013 after expiry of the current [10th] Parliament or within two months of the dissolution of the grand coalition government which was formed following the enactment of the National Accord and Reconciliation, Act, 2008.