How to create and enhance democratic space for independent candidates
By Wafula Wakoko
The freedom to exercise political rights in Kenya has been a growing curve, at least optically. The Kenya at independence and during the 1969-1991 period cannot possibly fathom the existence of independent candidates or the current 68 registered political parties.
In 1960, there were two Political Parties; Kenya African National Union (Kanu) and Kenya African Democratic Union (Kadu), with the latter dissolving and a majority of its membership defecting to Kanu in 1964. It is recorded elsewhere that Kadu was formed, among other reasons, to protect the interests of Kamatusa – Kalenjin, Maasai, Turkana and Samburu. The history of their merger does not, however, address whether the Parties had evolved into having a shared ideology – protecting the interests of people of all extractions – particularly those the parties had been formed to represent.
The year 1966 witnessed the formation of the Kenya People’s Union (KPU) by a section of individuals who defected from Kanu. In punishing the defectors, Kanu engineered the enactment of the Constitution of Kenya (Amendment) (No. 2) Act, 1966. The new law required members of Parliament who defected from their party to seek a fresh mandate. When a by-election (manipulated by Kanu) was held in June 1966 on the strength of the new law, out of the 29 MPs who were members of KPU, only 9 were re-elected. Not satisfied with the prevailing status, the executive (Kanu) banned KPU in 1969, turning Kenya into a de facto one-party state.
Prohibition of alternative political expression crystalized in 1982 through the Constitution of Kenya (Amendment) Act No 7 of 1982 which introduced Section 2A to the Constitution making Kenya a one-party state. It was until 1991 that the de jure one-party rule came to an end through the Constitution of Kenya (Amendment) Act No. 12. Before that, one could not legally form a Political Party.
Although the politics of political parties prior to the 2010 Constitution were largely characterised by government control, some parties embraced failure on own accord – from building Parties around individuals, lack of intraparty democracy, parties perceived to be pro-people joining forces with pro-government ones, mergers and coalitions based on lack of ideology, and splintering of parties due to the appetite of some of the leaders to be in sole control.
Examples include the split of Ford into Ford-Kenya and Ford-Asili, the defection of some leaders from Ford-Kenya to the National Democratic Party(NDP), and the NDP merger with KANU (the two had seemingly differing ideologies – did they then out of the blue come to the realization that they had common interests that necessitated the merger?)
The 2010 Constitution envisions political parties as organs that adhere to principles of good governance and national values. The practicability of this Constitutional principle has not lived to maturity. If the 2017 pre-election disputes are anything to go by, then political parties in Kenya have a limited appreciation of intra-party democracy. Some parties do not conduct closed primaries, some favour direct nomination in favour of select party favourites’, and internal dispute resolution mechanisms are skewed. As a result, members defect to other parties, form new parties or opt to contest elections as independent candidates. The decisions of the courts, IEBC, and PPDT on the 2017 electoral dispute resolution revealed parties that do not meet the basic requirements for political parties as dictated under Article 91 of the Constitution.
Of course, there is scholarship and settled principles that support “controlled intra-party democracy”, but at what cost?
In 2017 when the fully registered parties were 67, the 8th August 2017 General Election saw a rise in the number of Independent Candidates in comparison to 2013 as captured in Gazette Notice 4891 – Vol. CXIX—No. 65 of May 19, 2017. According to the IEBC records, the Independent Candidates in 2013 were 159; this number rose to 4, 000 in 2017. If this trend is anything to go by, 2022 will witness more Kenyans contesting elections as independent candidates.
Unlike party candidates who are curtailed by party politics and ideologies (assuming parties indeed have ideologies), independents as representatives have the opportunity to represent their constituents and independently support or oppose various motions. Given the oversight role of Parliament and the improbability of party MPs to oppose party positions, the independence of independents is to be celebrated. As illustrated in 2017 by Jubilee MPs regarding the enactment of the Election Laws (Amendment) Act, 2017, MPs affiliated to parties are likely to support the party position regardless of the inadequacy of the said position. In a way, the Political Parties Act reinforces this position – in terms of Section 14(5), which provides that a party member who promotes the ideology, interests or policies of another political party is deemed to have resigned from their political party.
This is in no way a call to Kenyans to abandon political parties. A rise in independents is not an affront to political parties. If anything, Kenyans who voted for the 2010 Constitution envisioned political parties that are democratic and poised towards according everyone an opportunity to participate in political processes. Parties that fail this test are subject to deregistration and other penalties under the Political Parties Act.
There are concerns that the Independent Candidates’ platform is for opportunists. As seen in 2017, those who fail in party primaries and are time-barred in joining other parties opt to become Independent Candidates. This is contrary to the objectives of introducing Independent Candidates – i.e. to afford the electorate persons who are not limited by party politics, party codes, or the standing of a party in society. Even so, in terms of Article 85 of the Constitution, one is allowed to contest elections as an independent candidate if they resign from a political party at least three months immediately before the date of the election.
Opportunists or not, there is something within the independent candidate platform that is attractive. Either that or parties are no longer attractive. Alternatively, it could be that Kenyans are simply exercising their rights.
Given this reality, there is a need to ensure independent candidates have an opportunity to participate in the electoral processes as intended under the Constitution without being subjected to undue technicalities.
The Elections Act, 2011, under Section 32, requires an independent candidate to develop and submit a symbol to the IEBC for approval. The symbol should not be obscene or offensive; a symbol of another candidate or a Political Party; or resemble the symbol of another candidate or political party or any other legal entity registered under any other written law.
The limitations on the preferred symbol are pronounced. According to the IEBC, the symbols enable illiterate voters to identify their preferred candidates. Nonetheless, ballot papers also bear photographs of candidates. Is it easy for an illiterate voter to identify a symbol as opposed to a photograph? The process of approval of symbols is strenuous and unnecessary. Clear photos with apt dimensions and colour codes should replace symbols. If anything, photographs were introduced in Kenya on the ballot papers starting from the 2013 General elections for purposes of identification. The argument of cost as a reason against elaborate photographs when the number of independent candidates keep soaring is invalid given the duty of IEBC to make administrative arrangements to facilitate elections. Further, the said Section 32 came to birth in 2011; it is probable to posit that Legislators might have not addressed themselves on the insignificance of symbols in the face of clear photographs.
Political parties have in the past declined to facilitate resignation of party members – that is, a person submits a notice of resignation yet the party declines to acknowledge the same (although the law as is does not specifically provide for acknowledgment of the notice). This would prove detrimental to persons who wish to contest elections as Independent Candidates. Within the meaning of Section 14(1) and (2) of the Political Parties Act 2011, one’s resignation takes effect upon the receipt of a notice to resign by the political party.
Sections 14(3) and (3A) demand that the Registrar of Political Parties shall only remove one’s name from the register of a party upon receiving communication from the said party; such communication is to be submitted by the party within seven days from receiving the notice of resignation. Given the strict electoral timelines, pre-election disputes, and the reality of politics, notice to resign from a party ought to be submitted concurrently to both the party and the Registrar of Political Parties. In this case, the ability for one to acquire a clearance certificate to be eligible to vie as an independent candidate should not be not dependent on the goodwill of the political party.
Additionally, the Office of the Registrar of Political Parties is housed in Nairobi with an additional seven regional offices. The Offices ought to be equipped to facilitate independent candidates in acquiring clearance certificates. This reduces the strain on both the ORPP at the headquarters level and the candidates who cannot access Nairobi; distance should not be a reason for disenfranchisement.
However, it is profound to note the court’s declaration in ‘William Omondi v Independent Electoral & Boundaries Commission & 2 others  eKLR’. During the life of the case, the current seven days under Section 14(3) were shortened to three days, the court held that the provisions of Section 14(3) of the Political Parties Act to the extent only that it purports to grant the Registrar of Political Parties the right to bar an independent candidate from vying for an election by reason of non-notification of resignation from a political party is inconsistent with Article 85 of the Constitution and is invalid and unconstitutional.
Ballot access for independent candidates includes the collection of signatures from supporters as provided under the Election (General) Regulations, 2012. For instance, the nomination of Independent Candidates for Senate and governor requires two thousand and five hundred voters registered in the county respectively. Although this is the position in law, it has been misinterpreted to mean that the supporters should not be members of a Political Party. There is a need for voter education so that party members who wish to support the candidature of Independent Candidates can do so. If anything, it emerged in 2017 that some political parties had listed a section of Kenyans as their members without consent. Therefore, it would be detrimental to confine independent candidates to supporters who must not members of any political party.
Regulation of money in politics plays various roles including levelling the playing field for candidates and hindering quid pro quo corruption. It is safe to assume that a party candidate has more sources of funds amongst them the party, a source an independent candidate cannot benefit from. In essence, a party candidate is likely to have more contributions. The Election Campaign Financing Act, 2013, which provides for contribution and expenditure limits ought to be operationalised so that IEBC sets monetary ceilings to control expenditure on campaigns.
The Constitution establishes a foundational framework for Political Parties and Independent Candidates, the latter who seem to be overlooked under the guise of strengthening political parties. Perhaps, political parties in Kenya have to crumble to be reborn and live up to their role as dictated by the Constitution. Until then, Kenyans will continue to seek alternatives.