Advice for the brave candidates who run without parties

What you need to know:

  • In just two minutes, Lincoln mastered one the most beautiful definitions of a true democracy
  • Once cleared, a candidate should be issued with a form of intention to contest as an independent and another for submission of a symbol.
  • Aspirants who may have lost party nominations and feel the process was biased or faulty should have a go at dispute resolution mechanisms before considering going to court.

The Gettysburg Address is perhaps one of Abraham Lincoln’s finest speeches, a “monumental act”. It is reproduced on the walls of the Lincoln Memorial in Washington, D.C.

It lasted just about two minutes, but those two intense minutes have never been forgotten.

On that day, 19 November 1863, Lincoln was dedicating the Soldiers’ National Cemetery in Gettysburg, Pennsylvania. He said,   

We here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

In just two minutes, Lincoln mastered one the most beautiful definitions of a true democracy, which is rooted in self-determination and freedom…the freedom to choose, and to choose through ‘Elections’.

In two months, we will be going to elections. This begs the questions, how ready are we as a country? Is the existing infrastructure and legal framework adequate? How adequate is our electoral complaints systems?

SUBMISSION OF A SYMBOL

The laws that regulate elections in Kenya are widely spread over several Acts of Parliament and subsidiary regulations. These are the Elections Act, the Election Campaign Financing Act, the Election Offences Act and the Political Parties Act, all bound together by the Constitution.

Guided by these laws, the IEBC released a step-by-step guide for candidates who wish to vie as independents. The guide instructs that candidates should first seek the clearance of the Office of the Registrar of Political Parties, in order to demonstrate that they are not members of any existing political party in Kenya.

An independent candidate should not be a member of any registered party. The candidate should have resigned to any affiliation in any political party by May 8, three months before the General Election.

Once cleared, a candidate should be issued with a form of intention to contest as an independent and another for submission of a symbol.

After this, the aspirant should have submitted a symbol both in hard and soft copy to be verified by the Commission to confirm that it is not like that of another independent candidate.

Approval of the symbols by the Commission was expected to be done by May 10.

SERIOUS PRACTICAL DIFFICULTIES

By May 13, candidates should have been informed of this approval by the Commission and collected the forms from respective Returning Officers to gather signatures of supporters endorsing them to vie. 

This is in accordance with Sections 32 and 33 of the Elections Act, which says that, “persons intending to contest an election as independent candidates shall submit their names and the symbol to the Commission for approval.”

According to Article 137 of the Constitution, independent candidates for President should be nominated by not fewer than 2000 voters, from each of a majority of the counties.

Section 29 (2) of the Elections Act went a step further. It required that an independent presidential candidate should collect signatures from supporters “not affiliated with any political party” in at least 24 counties. 

This provision presents serious practical difficulties for the candidates, for the Commission is yet to release the register and does not expect to do so until next month, long after the expiry of deadlines.

As of now, it is not possible to know with certainty if “independent” supporters are members of a political party.

The requirements for independent candidates for Governor (Article 180 of the Constitution) are similar to those of one running for election as a Member of a County Assembly. These aspirants should be supported by at least 500 registered voters in the relevant ward.

For the position of Senator, Article 99 of the Constitution requires that the independent candidate must be supported by at least 2000 registered voters in the relevant County.

Finally, for a Member of the National Assembly, according to Article 99 of the Constitution, the independent candidate must be supported by at least 1000 registered voters in the relevant constituency.

INDEPENDENT TRIBUNAL

Aspirants who may have lost party nominations and feel the process was biased or faulty should have a go at dispute resolution mechanisms before considering going to court.

In fact, Section 40 (2) of the Political Parties Act makes it clear that the political parties dispute tribunal “shall not hear or determine a dispute…unless the dispute has been heard and determined by the internal political party dispute resolution mechanisms.”

The Political Parties Dispute Resolution Tribunal (PPDT) is an independent tribunal in line with Article 169 (1) (d) of the Constitution and falls under the auspices of the Judiciary.

The PPDT was initially established under the Political Parties Act 2007, which was repealed by the Political Parties Act 2011. Section 39 of the 2011 Act empowers it to resolve disputes arising from political parties’ activities. 

If a candidate remains aggrieved by a PPDT decision, Section 41 (2) of the Political Parties Act 2011 provides that an appeal shall lie from the decision of the Tribunal to the High Court on points of law, and facts and on points of law to both the Court of Appeal and the Supreme Court.

In a nutshell, despite existence of an elaborate structure and legislative framework regulating the elections in Kenya, the integrity of the electoral process is yet to be fully realised.

KEY TO LEGITIMACY

Our laws may be good, but if their spirit is not respected, rights will never be realised. There is need for more civic education for independent candidates and voters as well as strict implementation of the law, particularly that which refers to the leadership and integrity chapter of the Constitution, which was grossly diluted before it was passed.

As we get closer to elections, the judiciary and the IEBC are expected to show integrity, transparency, fairness and caution. The future of their country is in their hands.

Justice Hewart said that justice, “should not only be done, but should manifestly and undoubtedly be seen to be done.”

The same can be said about the integrity of an electoral process, “Elections should not only be free and fair but should manifestly and undoubtedly be seen to be free and fair.” 

Rigging and manipulating elections and election results undermines the legitimacy of our governments. Electoral integrity is the key to legitimacy, for it guarantees that our government is really and truly “the government of the people” and then “by the people, for the people.”  

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi