Legal loopholes likely to derail new laws on campaign finances

For an electoral body determined to rein in campaign financing, the devil will not necessarily be in the details but in implementation of the law, owing to the commission’s low public confidence level and a polarised political environment, experts say.

The Independent Electoral and Boundaries Commission (IEBC) has published the Election Campaign Financing Regulations, 2016 to realise the provisions of Article 88(4)(i) of the Constitution and section 3 of the Elections Campaign Financing Act, 2013.

The regulations provide a framework for IEBC to monitor and regulate expenses, and for reporting of campaign expenses by political parties and candidates for elective seats.

For instance, it caps contributions from a single source at no more than 20 per cent of the campaign budget. Also, the campaign and expenditure committees are required to prepare and submit records of contributions. The reports, according to the regulations, have to be made public.

Good as the rules look on paper, the challenge will be to effect them since political parties will be required to self-report the amounts they receive as well as the sources — including anonymous contributors and expenditures.

Clause 20 of the regulations also provides that receipts will be issued only to persons or institutions that contribute more than Sh1,000, another loophole that can be exploited to avoid accountability or paper trail. 

“It is acknowledged as a herculean task and demands collaboration with security agencies,” IEBC commissioner Mohammed Husun Alawi admitted.

The difficult task, as Mr Alawi concedes, is not just on the hope of political players to self-declare the contributions and expenditures.

Even from its title, the regulations are specific to campaign financing — and the timelines for election campaigns, according to the Elections Act, is usually 21 days to an election.

The IEBC admitted that there is a legal vacuum which some political parties and candidates can exploit to raise funds illegally and to spend the money outside the 21-day timeline.

“This then poses the question as to when monitoring should take effect, noting that monies will be spent way before the 21-day period. There is justification to review the provisions of the Act and define ‘campaign period’ or provide clarity within the regulations to make reference to campaigns during the period of party primaries (nominations) to the election date. It is important that we build consensus on the campaign period,” said Mr Alawi.

Election Observation Group’s (Elog) Mulle Musau holds that while the regulations do not explicitly address financing outside the 21-day campaign period, “once the same is used during the campaigns, then it applies as part of campaign finances and ought to be disclosed.”

“This is a lacuna in law that needs further reflection and deliberations among stakeholders because politicians will use this to navigate the law,” Mr Musau acknowledged.

The other challenge to implementation of the regulations will be the charged political environment and the IEBC’s low confidence levels.

For instance, the opposition Cord has been calling for overhaul of the commission before the 2017 elections. Cord maintains that the current commissioners should not preside over the next polls, alleging that they have displayed partisanship.

In the Okoa Kenya Bill, a popular initiative through which Cord sought to amend the Constitution, IEBC was one of the targets for reform.

The referendum initiative collapsed after it failed to garner the requisite backing of one million registered voters, though Cord holds that IEBC and the Jubilee government short-changed them.

Another challenge that the implementation of the regulations faces is how to deal with finances from lobby groups (political action committees — PAC — as they are known in the US) who may not be directly linked to a candidate but could still influence election campaigns.