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Why is it tough to regulate political parties

Sunday November 10 2019

Political Parties

Acting Registrar of Political Parties Ann Nderitu. She says political parties are required to have the requisite number of members before registration. PHOTO | FILE | NATION MEDIA GROUP 

This week, acting Registrar of Political Parties Ann Nderitu responds to your questions.

1. At the peak of every election cycle, your office witnesses the registration of an unprecedented number of new political parties, giving rise to some being formed based on ethnic or parochial interests. What measures are you putting in place to ensure that registration of political parties is not a casual business in order to preserve our democracy? Mmasi Evans, Nairobi

Currently, there are 68 fully registered political parties of which 43 have representation in the National Assembly, the county assemblies and the Senate.

These numbers demonstrate that there is democratic space in Kenya and evidence that political parties are democratically participating in the electoral process.

Registration of a political party is a tedious process that takes almost one year in the best-case scenario. Thus, it can never be casual business.

The Political Parties Act, 2011 spells out the requirements for both provisional and full registration.

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Notably, only two political parties have met the requirements for full registration since the 2017 elections, while over 200 applications have been received.

2. The Political Parties Act sets out clear requirements that ensure good governance and strong political parties. For instance, a political party must have representation in more than half of the counties, including branches to serve them, not more than two thirds of members of its governing body should be from the same gender and they should publish their sources of funds, among others. Can you confirm the number of parties that have fully complied with the law? For the non-compliant, what are you doing to ensure full compliance? Sam Kibunja

It is important to note that compliance is a continuous process and not an event.

That is why we carry out periodic audits and have constant engagement and sensitisation programmes with the party leadership.

Currently, over 70 per cent of registered political parties are compliant. A party may be compliant today but fall short tomorrow, thus the office always follows and monitors compliance on a continuous basis.

In order to achieve full registration, one must have fully complied with all requirements.

However, as an office, we are in cognisance of the shifting statuses of the parties.

Parties effect changes on their own volition and at whichever time, which may affect their compliance statuses; for instance the resignation or election of officials may have an effect on the two-thirds gender requirement.

3. The Office of the Registrar of Political Parties is, among other things, mandated to usher in reforms in the registration and operations of political parties in order to promote democracy, maturity, discipline, transparency and accountability in the political arena. However, this office has appeared to favour the ruling parties which are financially stable at the disadvantage of opposition parties which are sometimes denied registration due to vested interests. What is your take on this matter? Dan Murugu, Nakuru

A party is neither the ruling party nor the opposition during registration.

However, the ORPP ensures fairness and assists all people who wish to form parties equally.

The Political Parties Act clearly stipulates the criteria for the registration of parties from the requirements of a political party, the provisional registration process, the manner of application and the conditions to be met before full registration.

The role of the ORPP is to ensure all these conditions are met before and during registration as it is a process that takes time.

The denial of registration is on the basis of compliance with the provisions of the Political Parties Act, the Constitution and other enabling laws.

4. The Kibra by-election campaign epitomises the disintegration, which our political parties have reached in terms of party discipline and general governance. Politicians from different political parties openly campaigned for candidates of rival parties even when their own were on the ballot paper. Many attribute this level of confusion to lack of proper regulatory mechanisms from your office. How much blame can you take for this and what are you doing to achieve party sanity, which in turn brings about democratic dividends to the nation? Komen Moris, Eldoret

By law and in practice, a political party is a self-regulating institution with powers emanating from its members.

The constitutions of political parties stipulate clearly how the parties should shoulder the responsibility of disciplining their members.

Most importantly, the social contract is between a party and its members and the onus is on the party to institute disciplinary procedures when dissatisfied by the conduct of a member.

Nevertheless, the ORPP as a regulator of political parties seeks to ensure fair administration of justice in the disciplinary procedures by verifying that the process adheres to the Internal Dispute Resolution Mechanism (IDRM) and disciplinary procedure stipulated in the party constitutions.

5. The Constitution has established a foundation for building strong issue-based political parties. However, the crisis in political parties, which are characterised by exclusion, patronage, and ethnicity, threatens to undermine the growth of democracy. What measures have you taken to usher in the much-awaited changes? Raphael Obonyo, Nairobi

The Constitution envisages strong vibrant and institutionalised political parties with clear ideologies.

The ORPP has taken numerous steps towards the realisation of the same. These include ensuring that the political parties are in compliance with the Act.

The Act grants powers to issue warning, suspend registration and even deregister political parties.

In the past one year or so, the ORPP has deregistered two political parties that were found to be in breach of the Act and failed to remedy within the stipulated time.

It should be noted that deregistration of a political party is also a vigorous process with several steps that give the party a lot of chances to remedy the breach.

The Registrar continuously issues notices to parties and gives them timelines to comply, where majority of the parties conform to the requirements of the Act within the set timelines.

6. The youth have been excluded from decision-making in political parties and denied the chance to determine their own destiny. What measures are you taking to ensure that political parties identify the youth as a key constituency to be involved in decision-making, and not as passive recipients of charity? Raphael Obonyo, Nairobi

Inclusion of special interest groups, including the youth, in the political governing structure is a requirement under the Act.

It is important for the youth in political parties to take active roles through joining the already established youth leagues and the national executive councils.

Out of the over 14 million registered party members, only 27 per cent are youths. This is a clear indication that the participation of youth in political parties is below average, given their high population.

The ORPP collaborates with other institutions to educate the youth on the need for political participation.

They should engage in politics because politics is about presence and involvement.

7. What is your office’s relationship with the Independent Electoral and Boundaries Commission? Is ORPP part of the commission, given that it was IEBC that seconded you to ORPP? Silvanus Musyoki, Embakasi

The ORPP is an independent State office within the meaning of Article 260 of the Constitution.

Section 34 of the Political Parties Act, 2011, provides for its mandate, which is the registration of political parties, the regulation of political parties and the administration of the Political Parties Fund.

The IEBC is a commission established under Article 88. As such, these are two different institutions.

However, given that both have functions with elements that revolve around the electoral process, there is intentioned collaboration.

8. The most annoying thing that goes to the core of our democracy is when MPs changed the law to allow candidates to party-hop very close to the elections. How can we reverse this trend and enforce party discipline, so that rejects do not find refuge in other political outfits? Githuku Mungai, Nairobi

The Elections Act was amended in 2016 where electoral timelines were streamlined to provide for the duration in which one has to be a member of a political party to qualify to participate in an election via a given political party.

This solved the issue of party hopping in its entirety. However, the timelines as per now allow some aspirants to vie as independent candidates after party primaries.

The rights of vying as an independent candidate is also provided for under Article 85 of the Constitution.

9. Party discipline is very key for the growth of our political parties yet every time a registered party disciplines its members for misconduct, the decision is reversed by your office or the Political Parties Disputes Tribunal (PPDT). How are parties expected to enforce discipline if they cannot be allowed to deal with errant members as per their laws? Brian Owino, Bondo

As explained above in another question, while parties are mandated to ensure discipline within their membership, the process should be in accordance with the party constitution.

The ORPP does not reverse party decisions. It only points out areas of non-compliance to the provisions of the party constitution.

The ORPP will only effect the decision if the party has followed its constitution and other laws.

However, if the decision is contrary to the party’s constitution and other provisions of the law, the party is referred to its Internal Dispute Resolution Mechanism (IDRM).

The Political Parties Dispute Tribunal (PPDT) can reverse the decision if the party is found to have violated its constitution and/or any other relevant law.

Party disciplinary procedures should adhere to provisions of Chapter Four of the Constitution.

Notwithstanding, these procedures are guided by the Act, which requires party constitutions to comply with Article 48 and 50 on access to justice and fair hearing.

10. There are political parties that Kenyans have never heard of yet they are fully registered, or bear interim registration documents. This wouldn’t be possible if the ORPP was strict on registration requirements. What registration criteria do you look at that would allow parties to exist without having to have offices in half of the counties? John Waithaka, Thika

There are numerous requirements that go into the registration, including membership and offices.

All political parties must meet the criteria set out in the Act. Firstly, parties are required to have the requisite number of members before registration.

The composition of its governing body must reflect regional, ethnic diversity and must meet the two-thirds gender rule and have a national character.

The party must have a head office and offices in half the counties.

Parties are required to deposit their offices lease agreements with the registrar, which are continually verified. ORPP also undertakes physical inspection of offices before registration.

The ORPP also continually monitors to ensure that offices are maintained and issue sanctions upon breach.

Political parties are institutions formed by members with a specific mission and it is upon the parties to publicise their ideologies, manifestos, and participate in elections to be popular.