Why it is necessary to regulate campaign expense

Up until now, Kenya did not have laws to regulate election campaign expenditure. The Constitution of Kenya 2010 took a progressive step in advancing campaign finance reforms. The legal framework contemplates free and fair elections based on equality, non-discrimination and empowerment of key participants. Electoral campaign reforms, when adequately supported and implemented, tremendously contribute to the constitutional standards for democracy and good governance.

Article 88, (4), (1) of the Constitution provides that the mandate of the IEBC include, among others, “the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election”. The Electoral Campaign Finance Act (ECF), which was enacted in 2013, seeks to implement Article 88(4),(1) of the Constitution.

The Act provides for the regulation, management, expenditure and accountability of election expenses during elections and referendum campaigns. By virtue of Section 29 of the Act, the electoral management body, IEBC, is empowered to make regulations to operationalise the Act.

The Act, by dint of Sections 12, 18 and 19, also requires the Commission to set limits on contributions, donations and expenditures by candidates and political parties. The IEBC meets this statutory condition by publishing the applicable limits. However, some political elite, academics and members of public have wrongly accused the Commission of “making politics a rich man’s game”.

But to the contrary, the objective of the new regulation is to afford equal opportunity for eligible persons to stand and compete in elections by creating a level playing field through capping lavish spending and more importantly deterring the use of illegal and “dirty money” obtained through corruption or organised crime from infiltrating the political system during campaigns.

In a political competition, parties and candidates need resources to reach out to the voters in order to popularise their principles and policies. Scholars say the influence of money is one of the main factors that prevent countries from attaining democratic aspirations.

In coming up with the framework for the limits, the IEBC engaged stakeholders through extensive consultations with political parties, civil society, state agencies and the media.

ENCOURAGE COMPLIANCE

The electoral body carried out a survey including benchmark with several African and international countries. A desk study was carried out on Belgium, Canada, Chile, France, Greece and other countries that put limits on both contributions and spending for elections. For instance, in Canada, one can contribute $1,100 to a parliamentary candidate while in Greece the maximum is $3,000. In Japan, an individual or corporate can contribute 1.5 million yen to each candidate per year.

Although the IEBC purposed to set the limits at a fairly permissive level to encourage compliance by candidates and political parties, implementation of the ECF law was not going to be easy. This is because limiting spending on advertisements, travel and publicity, for example, could be viewed as an affront to free speech if viewed as limiting access to the people.

Lessons from past elections illustrate the difficulty in ascertaining sources of campaign funds. Of great concern has been use of state resources by incumbents, the use of money generated illegally and funding by foreign governments. The ECF further makes disclosure of source of funds mandatory. Failure to disclose source of funds is now a punishable offence.

It is possible that situations may arise where it is not clear when an incumbent is using state resources to campaign and when he/she is performing some official duty. In such a scenario, the Commission is expected to apply the relevant provisions of the Elections Act and Public Officers Ethics Act.

The ECF law states that contribution from a single source must not exceed 20 pc of the total contributions receivable by either a candidate or party. This condition helps to ensure that a substantial contribution from a single source does not make the winner a puppet leader of the said contributor or “sponsor”.

The Commission determined a formula informed by an ideal base (electoral unit)which was applied against each allowable expenditure against quantitative and qualitative cost drivers namely the population and the geographical space of the electoral area.

The writer is Manager, IEBC Political Parties and Campaign Financing