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Constitution of Kenya Review Commission
By S. M. Kivuitu, Chairman, Electoral Commission of Kenya
Presented at the Constitution Of Kenya Review Commission Workshop On The Interpretation Of CKRC's Mandate at The Mombasa Beach Hotel, Mombasa
[ECK Ref : ECK/S&W/45A VOL.4]
l.0 SOURCES OF THE ELECTORAL PROCESS
1. The Constitution of Kenya
2. The National Assembly and Presidential Elections Act (Cap.7)
3. The Local Government Act (Cap. 265)
4. The Presidential and Parliamentary Elections Regulations 5. The Local Government Elections Rules
6. The Election Offences Act (Cap. 6 6)
7. The Kenya Broadcasting Act (Cap.221)
2.0 THE ELECTORAL COMMISSION OF KENYA
The Electoral Commission is a creature of the Constitution, which also sets out its powers and responsibilities. It has been in existence since the first independence Constitution in 1963 (see section 38 (4) of the Independence Constitution). However most people in Kenya did not know of its existence or its powers and obligations until in 1991 when the late Justice Mr. Chesoni and his team of Commissioners were appointed to prepare the country for the 1992 general elections.
The ECK is composed of 21 Commissioners (Members) and a Chairman. That is how section 41 puts it. And that is the maximum number. These include ten (10) Commissioners that were nominated by some of the opposition political parties represented in parliament in 1997. However, the Constitution is silent about these supposedly opposition Commissioners.
The President appoints the Chairman and the members of the Electoral Commission of Kenya (ECK) (section 41).
Sitting MPs, public service office-holders and members of the Armed Forces are disqualified from such appointments. The Chairman and the Vice Chairman must be persons who qualify to be appointed as Judges of the High Court or Court of Appeal. It means these two must at least be advocates of the High Court of Kenya. Other than that there are no constitutional or statutory qualifications that a person must have before being appointed. But once a person is appointed there is a Code of Conduct which determines what he or she cannot do or must do.
Upon appointment each member takes an oath of office. By doing so he/she commits himself/herself to discharge his/her responsibilities impartially as between contending political parties or political viewpoints or rival political candidates. This accords well with the provisions of the Code of Conduct for the Commissioners and staff of the ECK. The Code demands that the Commissioners and the staff must maintain neutrality in the political affairs and activities in connection with elections for a Commissioner who transgresses that prohibition he or she thereby commits a misconduct warranting removal from his/her office.
The ECK as constituted since October 1997 has worked very well. The authorities that nominated them brought together mature people who have served the public in the past in one way or another. Generally they are fairly educated. But most of all they have very high sense of responsibility and their integrity cannot be faulted. The result of this has been that this group has worked harmoniously.
2.2 Security Of Tenure
The Chairman and the members are appointed for 5 years (renewable). They enjoy the same protection against removal as Judges of the High Court i.e. that any of them can only be removed from office after a special tribunal determines that way after due inquiry. The President appoints the tribunal but its members must possess certain sound qualifications.
During a member's tenure his or her salary or other terms of service cannot be varied to member's disadvantage. Their salaries and allowances are paid from the Consolidated Fund. The salaries are determined by Parliament along with that of the other Constitutional offices like Judges, Public Service Commission and Controller and Auditor General. However the allowances are determined by the President for all these offices.
Finally, the ECK is protected by the Constitution from interference by any person or authority in connection with its performance of its work.
These constitutional provisions are intended to promote and safeguard the independence of the ECK from harassment, intimidation, blackmail, pressure and the like from all likely sources.
Some of the areas that may attract the attention of any reformer are the following:-
composition of the Commission
* mode of appointment of the Commissioners
* the size of the Commission in membership terms
* the duration of the tenure of office
* basic qualifications for members
An elections commission, as an election management body, must be competent, efficient and impartial in the execution of its electoral functions. Impartiality is at most times a matter of perception. And perception in politics is endemic. It is for those reasons that it is essential for any reviewer of a country's constitution to look hard at these issues. Different countries have addressed these matters in different ways. That however should not mean that what is good elsewhere is also good for Kenya in the way.
The finances for the ECK's operations other than the salaries and allowances payable to the Commissioners are voted for by Parliament as part of the Government's Annual Budget. That means, for instance, that funds for registration of voters and for holding of elections for each year have to be passed by Parliament. Consequently, if no funds are so approved or the approved sums are less than is required for the elections the ECK will have no funds to perform that essential function. Elections can become necessary at any time. There can indeed be more by elections than was originally planned and thus budgeted for. Consequently it is essential that funds for elections should be available always. Furthermore, that dependency can be used to compromise the independence of the ECK. In most countries election management bodies take money directly from the Consolidated Fund or some suitable constitutional arrangement is in place. It is time Kenya rectified this weakness.
2.5 Administration Staff
By virtue of powers derived through the Constitution the ECK employs its own staff. It has a Secretariat, which is still too small but it works. This consists of an Administrative Secretary and a Deputy and heads of departments namely Finance, Supplies, Public Relations, Computer and Cartography. The Deputy Administrative Secretary is responsible, among other duties, for election matters. Other than his personal secretary he has only one other officer to assist him. During general elections, however, ECK can employ temporary staff to assist him. The ECK finds that more preferable than having a director of elections or a chief election officer.
The ECK employs election officials it calls District Election Coordinators (DECs) each of which is, in the district, in charge of such functions as the ECK may specify. Basically the DECs provide support services to the returning officers (ROs) during elections. They are also Registration Officers and in that capacity they oversee the revision of voters' registers in their respective districts. Each DEC has three (3) junior officers to assist him/her in the performance of his/her duties. This is also a small group but it works.
2.6 Powers And Obligations
These are set out in section 42 and 42 A of the Constitution of Kenya. They are -
(a) to carry out delimitation of parliamentary constituencies by determining their numbers, their boundaries and their names;
(b) to carry out reviews of these numbers, names and boundaries of parliamentary constituencies after every 8 to 10 years after the last same exercise and
(c) to carry out some review of the parliamentary constituencies after every official population census and in case of changes in administrative boundaries.
(d) to conduct presidential, parliamentary and local government elections;
(e) to register voters and revise the voters' registers;
(f) to promote voter education;
(g) to promote free and fair elections; and
(h) to carry out such other functions as may be prescribed by parliament.
3.0 DELIMITATION OF PARLIAMENTARY CONSTITUENCIES AND PERIODIC REVIEWS
Section 42 of the Constitution lays out the principles that ECK follows in its discharge of this responsibility. The most important is that "all constituencies shall contain as nearly equal number of inhabitants as appears to the Commission to be reasonably practicable". It is important to note that the Constitution refers to "inhabitants" and not "registered voters". It also confers on the ECK a very broad discretion whose parameter is that it must be "reasonable" to the ECK. In Kenya many "registered voters" of a parliamentary constituency, for example, in Mombasa may be inhabitants of Lamu or Kitui or Taita/Taveta districts. Consequently any honest student of the distribution of parliamentary constituencies in Kenya will look at the population as opposed to the number of registered voters in a constituency. In fact, in the same section of the Constitution the ECK is enjoined to take the latest population census as giving the correct number of inhabitants.
The Constitution then provides that the ECK can depart from this principle of equality of population between parliamentary constituencies "to the extent that it considers expedient" in order to take account of -
(a) the density of population, and in particular the need to ensure adequate representation of urban and sparsely -populated rural areas;
(b) population trends;
(c) the means of communication;
(d) geographical futures;
(e) community of interest
An additional discretion is granted on the ECK - i.e. to deviate from the principle of equality "to the extent that it considers expedient" and, as regards density of population alone, "the need to ensure adequate representation of urban and sparsely -populated rural areas".
Clearly the discretion placed on the ECK is very wide -indeed it may not be easy to define it in precise terms. The exercise of discretion is always a common area of disagreement. The way one person exercises a discretion bestowed on him might differ from the way another person would have exercised that discretion. So long as the decision was not influenced by caprice or malice or self-interest it would be dishonest to say one of the two decisions is definitely wrong.
In 1996 the ECK reviewed the parliamentary constituencies by a constitutional amendment. Parliament had set a maximum of 210 constituencies. At that time there were 188 constituencies. Thus 12 new constituencies were to be created. The last population census had been held in 1989.
There is no set procedure on how to go about reviewing boundaries and names of constituencies. The ECK however called for suggestions from the public and truly it received many memorandums with bright ideas. It also held consultative meetings with the people in every district and received their views. After considering all the proposals and opinions in combination with its independent research on relevant matters and on taking into account the principles of equality of the population amongst constituencies and upon exercise of its discretion in the lines provided by the Constitution, the ECK reviewed the constituencies in the manner and extent that is now Legal Notice N0.298 of 1996.
During its tour of the districts to consult people controversies abounded at all the places. Even after the ECK took its decision controversies still persist.
The first parliamentary constituencies of independent Kenya came on the recommendations of the Kenya Constituencies Delimitation Commission in January 1963 head by S. Foster-Sutton. As a result Kenya was divided into 117 constituencies. Did the distribution favour any particular region or province? The next reorganization of constituencies came about at the liquidation of the Majimbo Constitution in 1966 when 41 new constituencies were created for the senators to pave the way for the Senate's liquidation. Parliament actually directed how the constituencies were to be distributed. Was any particular region or province favoured in the process? Another review was carried out in 1986. Did this favour any region or province? Then in 1996 what would the ECK do constitutionally that it did not do? The point being made is that it is essential to study the whole history of constituency making in Kenya in order to make meaningful suggestions.
The provisions of section 42 of the Constitution on constituency making are not very much different from those found in many other countries. However, in most countries the Constitution provides some guidelines as to how far the responsible authority can depart from the principle of equality of population. That may warrant serious consideration by any reformers of the Kenyan constitution.
Kenya practises first-past-the post system of elections. In an election the winning candidate is the person who scores most votes. That result has no bearing to the margin of the win or the total votes cast in the election. The victory could be by one or two votes.
Each voter is entitled to one vote in every election, that is, for example, in a presidential election, a voter will cast only one vote.
The ballot paper contains the names of the candidates, the party symbol of each candidate's political party and a space in which the voter marks his/her vote. Thus a valid used ballot paper will bear only one voter's mark.
Kenya is divided into 210 parliamentary constituencies. In a parliamentary election each constituency elects one person to represent it in parliament. The successful candidate is called a Member of Parliament for that constituency.
For Presidential election Kenya is treated as one constituency.
Local government in Kenya consists of four types of local authorities, namely, county councils, municipal councils, town councils and one city council called Nairobi. Each local authority has a section of elected councillors. They represent electoral areas also known as civic wards. One or more councillors can be elected to represent one electoral area. The ECK determines the number, names and boundaries of these electoral areas. It also determines how many persons will be elected for each electoral area. Currently no electoral area has more than one councillor.
Each candidate in all the elections must belong to a political party. The political party must sponsor the candidate. Independent candidates are not allowed.
Each political party must have its party symbol, which must be approved by ECK, so that voters can identify the political party of their preferred candidate by his/her party symbol where the voter is illiterate. That is why the ballot papers must bear the party symbols.
There are members of parliament and councilors who are not elected. Political parties that are represented in parliament and local authorities, as the case may be, nominate them. A political party is entitled to nominate a ratio that is proportionate to the number of its elected members of parliament or elected councilors.
In the nomination of members of parliament or councilors the constitution and the statutes require that political parties should observe gender equality. They never do. The ECK is legally mandated to ensure the political parties observe this requirement. The ECK never does so. And this is the only provision in the Constitution and the statute law that explicitly demands equal treatment between the sexes.
The electoral system used in Kenya is common in many of the Commonwealth countries. There is the other alternative electoral system known as Proportional Representation (PR) which is practised in many countries some of them members of the Commonwealth e.g. New Zealand and South Africa. And there are countries that have a mix of both systems.
The goal of all PR systems is to deliberately translate a political party's share of the vote nation-wise into a corresponding proportion of parliamentary seats. Thus a political party would be awarded a proportion of the parliamentary seats that equal the share of the votes cast in its favour nationally. The system is lauded for providing fair representation. Representation in Kenya is one of the most contentious issues. Consequently a system that is seen to improve representation would be attractive. However it is a system that requires certain circumstances to obtain e.g. the existence of organized political parties. It will be necessary to address that first. The system is reputed to resolve ethnic rivalries. It will be welcome to Kenya if it can do that.
Last year the ECK in conjunction with the Friedrich Ebert Stifftung held a workshop where all the political parties and major groups within the civil society were represented to discuss exclusively the ideal electoral system for Kenya and other African countries. South Africa, Namibia, Ghana, Tanzania and Uganda attended and were represented by senior election managers, University dons and representatives of the civil society. At the end of the workshop the participants recommended that African countries should implement a mixture of Plurality-Majority system (to which FPTP belongs) with one or two of the PR-variants. List PR from PR stock was favoured. There are plans to hold a follow-up workshop for the East African Community countries in the next few months on the same subject matter. It is hoped this time the workshop will come up with recommendations that will identify ways by which that ideal electoral system can be explained to the inhabitants of these countries for them to understand what is at stake in order to enable them to make an informed and deliberate choice between the alterative electoral systems. The ECK will, at the same time, learn more about these systems. At the moment it cannot claim to be well-informed about them.
There are advantages and disadvantages in all these systems. It is very attractive for a democracy enthusiast to urge for the immediate adoption of PR system or a mixture of systems in Kenya during these days of constitutional and legal reforms. It should however be borne in mind that
* Kenyans have a system they are used to (since 1963);
* Kenyans are entitled to know and understand well what each system involves;
* Kenyans are entitled to choose the system they wish to adopt;
* any new system that does not have the full support of Kenyans will be undesirable. By Kenyans we not mean the elite. We are talking of the ordinary voters.
My personal view as S. M. Kivuitu is that this aspect of reform should be carried out without haste. In New Zealand it took many years of consultations with the people before adoption. In Britain a parliamentary commission recommended some changes that would amount to a mixture of electoral systems. That is some few years back and yet that country has not rushed to adopt those, indeed, very mild changes. Maybe I am unduly cautious. Or maybe I am absolutely wrong.
4-2 Holding And Conduct Of Elections
In respect of the three elections a candidate must be a Kenya citizen and registered as a voter. In presidential and parliamentary elections the candidate must be so registered in a parliamentary constituency. And for local government election the candidate must be so registered in an electoral area within the local that the candidate intends to seek election.
A presidential candidate must be 35 years of age and above. A parliamentary candidate must be 21 years old or older. A civic candidate must have attained 18 years of age or above.
4.3 Presidential Election
Section 9 of the Constitution of Kenya provides as follows: -
(1) The President shall hold office for a term of five years beginning from the date on which he is sworn in as President.
(2) No person shall be elected to hold office as President for more than two terms.
(3) The President shall, unless his office becomes vacant by reason of his death or his resignation or ceasing to hold office by virtue of section 10 or section 12, continue in office until the person elected as President at a subsequent presidential election assumes office.
The last presidential election was held on 29 December 1997. The President was sworn on 31 December 1997.
Presidential election is held whenever the President's office falls vacant. It falls vacant if the sitting President: -
(a) dies or
(b) resigns or
(c) is removed by nullification by Court of his/her election in an election petition or
(d) is removed by Court after due inquiry on grounds of incapacity to carry out the presidential duties or
(e) becomes disqualified to be a member of parliament under the law that governs the requisite qualifications;
(f) parliament is dissolved or
(g) the President's term of office expires
Except in the case where the issue comes up as a result of a motion of no confidence in Parliament only the President is empowered by the Constitution to dissolve Parliament at any time before its life legally expires. The ECK's role is to publish an appropriate notice of the holding of the election in the Kenya Gazette. When the election is to be held in general elections then the period of the taking out of the notice must agree with the timetable for the general elections. In any other case the notice must be taken out as soon as possible after the occurrence of the vacancy in the Presidency. The by-election however, in these other cases, must be held within 90 days of the occurrence of the vacancy.
In the noticethe ECK will state the dates for the nomination of the candidates and the election date.
The Presidential candidate must be nominated by a political party. His nomination must have a proposer and a seconder (both of whom must be national officials of the candidate's political party. He must also be supported by at least one thousand (1000) subscribers. The proposer, seconder and supporting subscribers must be registered as voters in some parliamentary constituency.
To win the presidential election a candidate must lead in votes and in addition receive twenty five percent of the valid votes cast in at least five (5) provinces of the 8 provinces that make up Kenya. However, if no candidate succeeds as stated then there follows a run-off between the two rival candidates who scored highest votes. Even this time the candidate who scores more votes than the other scores at least 25% of the votes in five provinces of Kenya's 8 provinces is declared the new President.
A presidential candidate must also be a parliamentary candidate for a parliamentary constituency. He or she must win the parliamentary election as well in order to claim victory in the presidential election.
4.4 Parliamentary Election
Parliamentary election is held if parliament is dissolved or a member of parliament dies or resigns or Court nullifies his or her election as a result of an election petition or the Speaker of the National Assembly declares his seat vacant or becomes disqualified by law to remain such a members. The parliamentary term of a member of parliament is five years after the date of the first parliamentary sitting following general elections. In any other case the term is limited to the remaining part of the life of that parliament. All this is subject to earlier dissolution of parliament.
Parliament would stand dissolved after five years from the day it first sat following a general election. The President can dissolve parliament at any time before that day. The present parliament first sat in January 1998. It will therefore cease to exist on that day in Jan 2003. In view of the fact that the President's term will automatically terminate on or about 31st December 2002 the life of the present parliament may be unable to exceed that day.
The law lays out the timetable within which the election must be held. Where parliament is dissolved general election is held. The Speaker of the National Assembly must issue writs within fourteen day after dissolution of Parliament to the Returning Officer (RO) for each constituency to hold election to fill the vacancy in that constituency. The Speaker must transmit the writs to the ECK, which in turn, must deliver the writs to the Returning Officers within ten days. The ECK must then, within the same ten days, publish notices of the general election stating the days when the nomination of the candidates will be carried out and the day when the election will be held. The nomination days allocated must allow the political parties a minimum period of twenty-one days, to conduct the nomination of their candidates.
A minimum period of fourteen days from the last nomination day must be allowed before the Election Day. This timetable applies to by-elections (i.e. election other than general election) except that the law allows for a longer period between the occurrence of the vacancy and the issuance of the writ by the Speaker.
A parliamentary election candidate must prove that he/she is sufficiently proficient in both the English and Swahili languages to the extent that he or she will be able to take part in parliamentary debates. The proof required is provided under the National Assembly and Presidential Elections Act (Cap.y). If the candidate does not hold the educational certificates or has not attained the status set out in the Act then he or she must take a test on the language he or she is not proficient. The test is held under the aegis of the ECK.
During the nomination of candidates a parliamentary candidate must be supported by a proposer and a seconder and between seven (7) and eighteen supporters all of whom must subscribe on his nomination paper. They must be members of the candidate's political party and be registered voters in the constituency the candidate seeks to be elected.
4.5 Local Government Election
The Local Government Act (Cap 265) provides that whenever parliament is dissolved the councils will automatically be dissolved and general election would ensue. The general election for the local authorities is by law held together with the parliamentary election in such general elections.
Vacancies within local authorities occur where, among other things, a councillor dies or resigns or is disqualified for contravening specific provisions of the Local Government Act or when his/her election is nullified by a Court of law on application to Court after the holding of the election or for defection from the political party which sponsored him/her at election to another political party.
Except for the time allowed for communication to the ECK about the existence of a vacancy in a local authority the rest of the timetable is the same as for parliamentary election.
4.6 Election Officials
Whenever an election is to be held the ECK appoints certain election officials. It appoints Returning Officers (ROs) and through those it appoints presiding officers, polling clerks and counting clerks. Election officials must be non-partisan concerning the election they are conducting. Those whose duties will involve entry into a polling station must take the oath of secrecy to the effect that they will safeguard the secrecy of the electors' vote.
The functions of each category of these election officials is clearly set out in the Presidential and Parliamentary Elections Regulations and the Local Government Elections Rules. A Returning Officer (RO) would be in-
charge of the electoral process for the parliamentary constituency whereas the presiding officer (RO) would be in-charge of the electoral process within the polling station.
The ECK designates polling stations. These are the places or premises where the voters would go to vote. Their names, locations and identification numbers must be published sufficiently for the benefit of the voters. They must be sited and distributed so as to secure convenient and maximum use by the voters. Each constituency would have several polling stations the actual number being dependent on the number of the registered voters and the size of the parliamentary constituency.
Only registered voters can vote. They vote at the polling station. The serial number of their voters' cards would guide them as to the correct polling station to go to. Once a person presents himself/herself before the presiding officer or a polling clerk the officer checks if the voter is registered as a voter and if he or she is really the right person named in the voter's card. To establish the latter the voter must also produce his/her National Identity Card or his/her Kenyan passport. Then after a few other formalities the voter is issued with a ballot paper whereupon he/she proceeds to mark his/her ballot paper. He or she enters a secret compartment alone for the purpose. He or she then folds the ballot paper in a way that ensures no one can see how he or she marked the ballot paper. He or she then deposits the now folded ballot paper in a ballot box provided by ECK for that election and which is kept within the sight of the presiding officer and all other occupants of the room.
Where a voter is illiterate or physically incapacitated to the extent that he or she requires assistance to vote, and the voter requests the presiding officer to so assist, the presiding officer is allowed to render that assistance. He or she, however, must invite a polling agent for each candidate to come along and witness the voting. He/she must mark the vote according to the wishes of the voter.
At every polling station a candidate is allowed to have polling agents. The number that a candidate will have is determined by the presiding officer having regard to for example, the size of the room and the number of candidates. These are supposed to safeguard the candidate's interest. However, on most occasions they do not seem to know their responsibilities well enough for the job.
ECK has black opaque ballot papers. The British freely donated the original supply. The ECK only adds a few more such boxes every time the need arises.
Only a limited category of people are allowed to enter into a polling station besides the voter, the candidate, the candidates' agents, election officials and police officers on duty. These include the press and election observers.
ECK accredits election observers. Before that is done they must convince the ECK that they are neutral with regard to the results of the election. The accreditation confers on them the right is to make observation and make notes of their observation. They are not allowed to interfere or question the electoral process or the election officials' decisions, while the election is in progress.
Thus they are not monitors. Kenya does not recognize monitors.
There are some very competent Kenyan (i.e- domestic) election observers. But there are equally plenty of ignorant ones especially during general elections.
The ECK uses the police force to keep order at polling stations, to escort ballot boxes and ballot papers and to maintain law and order at the counting halls where votes are counted. ECK pays such police officers some honoraria.
4.7 Counting Of Votes
After the close of the poll all ballot papers used and unused and all election materials used for the polling e.g. voters' registers, are put in the ballot boxes. The presiding officers seal the ballot boxes. They allow the candidates' agents to do the same if they have their own seals. The ECK does provide candidates with seals in case they want to seal the ballot boxes and they have no seals of their own.
The ballot boxes, so sealed, from all polling stations in a parliamentary constituency, are transported to one place. Counting is carried out at that place. Usually it is a hall. Its location and identity would have been published long in advance of the counting.
The Returning Officer carries out counting. Candidates are allowed to be present or to be represented by counting agents who must have been appointed in writing and notified to the returning officer in advance. The Returning Officers count ballot papers polling station by polling station. When he or she establishes the total, he or she announces the results of the election.
The ROs then convey the results to the HQs of the ECK as prescribed. But before they do so, in practice, each RO telephones the ECK and dictates the results. After receiving these results in the prescribed manner, ECK releases the results to the public except in the case of the presidential election.
In this latter case the ECK tallies the results brought by each RO and from those forms it declares who the winner is and the scores of all the candidates.
4.8 Adjudication Of Election Disputes
There is no constitutional or statutory provision for the adjudication of disputes that may occur during party nominations, nominations of candidates by Returning Officers or election campaign period. The High Court, however, has held that such disputes can only be resolved in election petitions.
4.8.1 Presidential and Parliamentary elections
The Attorney General or any person who was entitled to vote in an election may lodge election petition in relation to that election. Returning Officer is not thus authorized to file such election petitions. The election petition must be drawn as provided by the Constitution, the National Assembly and Presidential Election's Act (Cap.7) and the National Assembly Elections (Election Petition) Rules. The petitioner must deposit Shs.250,000= with the Court at the time (or very soon after) he presents the election petition which is some kind of security for costs of the litigation. The petition must be lodged and served within 28 days after the date of the publication of the results in the Kenya Gazette. The Courts have held that service of the election petition must be personal.
The election petition challenges -
(a) the validity of the nomination of a President,
(b) the validity of the election of the President or a Member of Parliament.
Whether or not a parliamentary seat has become vacant can be a matter for petition for the High Court to determine.
A bench of three Judges of the High Court called the election Court hears the election petitions. Several such election courts are usually established. An election court can only -
(a) nullify the nomination of a Presidential candidate, or nullify the election of a President or a Member of Parliament or
(b) dismiss the petition. It cannot declare any other candidate as the winner.
There is no appeal to the Court of Appeal on the determination of the question of the validity of the nomination and/or election.
4.8.2 Civic Election
A person who is qualified to be elected or to vote and a returning officer can challenge the validity of the election of a councillor. This is done by way of an application. The application must be lodged in a Magistrate's Court that is for the area or of the local authority nearest to that area within fifteen days of the publication of the election results.
The Magistrate is empowered to declare the election invalid and to go further and declare a particular candidate as a winner.
4.9 Election Offences, Electoral Conduct
The Election Offences Act (Cap 66) is entitled as an "Act of Parliament to prevent election offences and corrupt and illegal practices at elections" and it just does that. Its scope is wide enough to protect elections from acts and omissions that would compromise fairness in an election, freedom and secrecy of the voter and of the vote. The problem therefore is not the law but its enforcement. The police's attitude seems to be that since such offences arise from a political activity they are politics which the police should not be involved. That is not to say that the Kenya police necessarily act fairly during elections. Indeed on the contrary in 1997 a new section had to be added to the Police Act enjoining the police to act fairly and impartially in election matters. The only plausible explanation for this reluctance seems to be fear of losing their jobs. That is an area that must be seriously addressed if the police is expected to act as it should under the law. Secondly no prosecution can be commenced without the Attorney General's sanction.
It is not clear why that is necessary now even if it was thought necessary at the time the Act was passed in 1958. It seems Kenya simply lifted the British statute on these matters and transplanted in our country. There was no Electoral Commission of Kenya (ECK) then just like in British there has never been one. It provides a round- about way of dealing with a real issue that does not seem necessary. Bank robbers do not get such dignified honour though their crime seems to be more serious than an election offence or illegal or corrupt practice going by the penalties attached to each.
Kenya has statutory Electoral Code of Conduct. It is Fourth Schedule to the National Assembly and Presidential Elections Act. Its paragraph 3 reads as follows "The object of this Code is to promote conditions conducive to the conduct of free and fair elections and climate of tolerance, in which political activity may take place without fear of coercion, intimidation or reprisals". No political party or candidate is allowed to take part in an election unless and until the political party and the candidate subscribe to the Code. Such subscription binds the political party and its supporters and the candidate and his/her campaigners to comply with the standards set out by the Code which are well summarized in paragraph 3 referred to above.
Political parties and candidates have so far treated the Code casually. They all treat it as if it is for ECK. They do not seem to realize that it is some sort of covenant among themselves for the good of the country. The ECK does not find it easy to enforce the Code without the cooperation of the political parties who prefer to politick over its infringement. Furthermore ECK does not have the human and financial resources to act on its own on these matters without the parties' and candidates' cooperation. ECK will still continue to press these groups to respect their Code.
It used to be routine to see public officers campaigning for votes for the election of a candidate. On many occasions they would even use their official vehicles to do that. This is no longer the case. Such conduct was outlawed in 1997 by an amendment of the National Assembly and Presidential Elections Act. The law enjoins these officers to keep off politics at such times. Generally the law is being observed.
4.10 Political Parties
Only political parties that are registered are allowed by law to participate in elections. A Government department carries out registration. Except for a few references to political parties in the Constitution and the National Assembly and Presidential Elections Act, political parties are treated by the law, like it treats social clubs, football clubs, funeral associations, religious and revival societies etc. They are registered under the same Act of Parliament. From its provisions it is clear that the Act was never intended to deal with political parties.
This situation requires attention. There should be a legal regime that will lead to proper organization of political parties. Indeed it is not possible to see how the political parties as currently constituted and operated can account for public funds which may be given to them in order to improve their performance and potency.
All the same when elections are imminent, whether general elections or by-
elections or whenever the ECK is about to embark on an exercise that will affect elections the ECK holds consultative meetings with the registered political parties and discusses with their representatives the whole matter. These consultations have proved to be beneficial to the political parties and ECK. The parties' contributions on such occasions are remarkable. The ECK is very grateful to all the political parties for this cooperation.
5.0 REGISTRATION OF VOTERS
Section 32 of the Constitution of Kenya provides that the person who may be allowed to vote in a parliamentary election must be registered as a voter in the parliamentary constituency. No person can be elected as a President or Member of Parliament or a councillor unless he/she is registered as a voter. That makes the registration as a voter extremely crucial.
Voters are registered under the National Assembly and Presidential Elections Act and the Local Government Act. To register the applicant must produce before the voters' registration officer a National Identity Card (ID) or a Kenyan passport. The ECK has no power or authority to issue or demand the issuance of any of these two vital documents. Government departments under different legal regimes issue them.
The law empowers the ECK to carry out registration of voters in a single stretch from time to time. As the law is currently worded it cannot possibly entertain continuous registration of voters. In compliance with the current law the ECK carried out registration of voters exercise in 1997, in preparation for the general elections that year. It was computerized for the first time. Thereafter it became unnecessary to carry out registration of voters afresh as was the practice in the past. The ECK decided to be revising the registers, still in one stretch as opposed to a continuous activity. The ECK did so in 2000 and 2001. It is going to do the same early next year (2002). This time the ECK will have a representation in each village and residential estate. The ECK's intention is to get onto the register as many unregistered but qualified persons as possible. Currently there are 9,402,680 registered voters in Kenya.
There are many people in Kenya who swear that they are Kenyans but who have no ID cards or have difficulties in obtaining these ID cards. The effect is that they therefore cannot be registered as voters and thus they cannot vote. The Principal Registrar of Persons whose office is responsible has promised ECK that his office is doing its best to address these matters and hasten the issuance of these cards to those who have applied for them. ECK would like to see the Principal Registrar of Persons succeed. Qualified Kenyans have a right to be issued with ID cards whenever they apply for them.
At the same time it should be recognized that not all Kenyans who hold ID cards wish to be registered as voters. To register as a voter or to vote is not compulsory in Kenya.
Finally, many Kenyans have failed to collect their ID cards from the Department's offices. In some cases the reasons for this failure is understandable like where the applicant has to spend money to travel for the purpose and has no such money. Once again the Principal Registrar of Persons has agreed to deal with the problem by arranging for the ID cards to be taken to the applicants.
6.0 PROMOTION OF VOTER EDUCATION
The ECK recognizes the importance of this responsibility. It however does know that it is not possible for the Government to provide sufficient funds for the purpose. As a consequent the ECK sought the participation of those who seem to support the promotion of democracy. There were many who showed interest. They however advised that they would only come in if Government showed commitment to the voter education by providing some token sum for the purpose. The Government accepted the challenge and has annually given some financial provision for voter education. None of these friends showed interest after that.
In 1999 UNDP came up with a voter education programme for 9 districts in the promotion of good governance for the purpose of reduction of poverty. The ECK joined with UNDP and Institute for Education in Democracy (IED) in the implementation of the programme. In the process all the DECs were trained on how to design voter education programmes and the methods for its promotion. With no funds however that knowledge is of no avail.
This UNDP/ECK/IED voter education programme has produced a voter education manual and community voter education promoters in these lucky districts. The ECK has noted that in the districts where this programme is in progress there is heightened awareness about the electoral process. It is unfortunate that the programme is restricted to these selected districts.
In the promotion of voter education ECK has found that it is important to involve the provincial administration and the political leaders of all political parties. That is not to say you seek the permission of the Government officers or the politicians. No. What the ECK did was to approach them to attend and take part like any other trainees and make their contribution. As a result the ECK has been able to get the cooperation and participation of those who most likely would have been its opponents.
The ECK is now working out on a limited programme for the promotion of voter education in the other districts. Its extent and success will depend on the available funds.
7.0 OTHER FUNCTIONS AS MAY BE PRESUMED BY PARLIAMENT
Parliament, in 1997, empowered the ECK to be drawing electoral areas (i.e. civic wards) just as it does parliamentary constituencies. The ECK has between April and August carried a major review of the current electoral areas and it is going to announce new electoral areas presently.
In order to come to its decision it first carried out a research on the past creation of electoral areas in Kenya, held consultations with Kenyans in all the districts, and considered memorandums it received from Kenyans on the matter. It found that given their freedom Kenyans know a great deal and have admirable ideas. In fact what the ECK proposes to do came from the mouths of ordinary Kenyans. The ECK's experience is that ordinary Kenyans should always be given an opportunity to say their bit and they should be seriously listened to. This works best when the subject matter for this consultation is explained to them in simple but clear terms so that they realize what is in issue.