Why law on campaign funding should be amended

What you need to know:

  • The Election Campaign and Financing Act could have done far more to highlight transparency and impose full disclosure especially where big contributions and donations are received.

  • It is rather late to be lamenting, nor is there much chance to hold anyone to account.

  • May the next MPs consider amending the Act that we not stumble back to be egregious era of opacity.

According to the annual Sunday TimesRich List, Arron Banks, an insurance tycoon donated £8.1 million (Sh1.069 billion) towards the Leave campaign in the United Kingdom–European Union referendum. On June 24, 2016, a year ago today, the British voted to leave the EU.

As we align ourselves economically and politically, aiming to become a developed country, this year’s General Election is governed by the Election Campaign and Financing Act. The Act governs political contributions and donations, with the Independent Electoral and Boundaries Commission as the regulator. However, in seeking accountability, the Act has limited transparency.

First, contributions and donations are permissible from a lawful source. Conversely, the Act has not defined what a lawful source is, other than not being from a foreign government. This begs the question, if a political party receives funds from Saif al-Islam, is this lawful?

Additionally, there is a great deal of onus placed on the political parties and candidates to uphold integrity and ethics. Where an anonymous donation is received, the party or candidate must within 14 days declare and return the contributions to the IEBC, or they will have committed a criminal offence.

ONLINE CROWDFUNDING

This raises an issue with online crowdfunding, which has suddenly become fashionable. By declaring and returning the anonymous donations, the candidate may be losing out on substantial contributions at the expense of an already underfunded campaign. In contrast, if a big anonymous donation is received, it does raise eyebrows as to who is funding the campaign and should be lawfully declared.

Commendably, the Act has also imposed a duty on the party and candidates to issue a receipt for contributions in excess of Sh20,000. This is a very low threshold considering a presidential candidate can receive contributions of up to Sh3 billion from a single source. This level of accountability goes a long way in meeting the constitutional value of transparency. The sum and source of donations must also be disclosed to the IEBC. Alas, but the Act then contradicts itself, stating that the disclosure of funds shall be confidential and details of such funds shall not be divulged except where such information is the subject of a complaint or an investigation, or is the subject of proceedings in a court of law. It is rather ironic we will not be privy to the name of donors or donations received by candidates running for public office, yet we are privy to their full education history. What good does it do for the IEBC to be privy to this information, yet the electorate are left in the dark?

COMMODIFY SEATS

First, big donations, whether from organisations or individuals, give the impression the money generously given commodifies political seats. This is an existential threat to the electorates’ democratic right to vote, which will seemingly appear to be of no consequence. Secondly, big money implies the donors will influence the outcome of the election and, further down the line, they will have a direct or indirect influence on the policies that will be put in place by the elected party or candidates. After all, it is an investment no-brainer, the donor would want to prosper mightily from their investment, and they would push their industry agenda and special interests.

Ideas aside, we are supposed to be in a democratic era governed with transparency and accountability. Yet instead of perfect and absolute disclosure, we are left to make conjectures that donors have a malign desire to influence our future. At the very least, we are owed the right to know who these donors are.

For political parties and candidates, the Act has not absolved you of the right to voluntarily disclose your donors and donations. This level of transparency will exude public confidence in you.

The Act ought to have done far more to highlight transparency and impose full disclosure especially where big contributions and donations are received. It is rather late to be lamenting, nor is there much chance to hold anyone to account. May the next MPs consider amending the Act that we not stumble back to be egregious era of opacity.

Gladys Burini works with international businesses on commercial litigation.