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1 Chapter 24 Electoral Justice in Kenya Under The CHAPTER 24 ELECTORAL JUSTICE IN KENYA UNDER THE 2010 CONSTITUTION1 IMPLEMENTATION, ENFORCEMENT, REVERSALS AND REFORMS This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2019) “Electoral justice in Kenya under the 2010 Constitution: Implementation, enforcement, reversals and reforms,” in Ben Sihanya (2019) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol.1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya. 24.1 Problem and background to Kenya’s quest for constitutional democracy through a just electoral process and governance My overarching argument in this article is that since the promulgation of the Constitution of Kenya 2010, Kenya has experienced reversals in implementation and enforcement of the Constitution generally. The process and the outcome in the 2017 General Elections provided an opportunity for Kenyans to re-ignite hope and reforms in governance and public administration. I use an Afro-Kenyanist methodology to discuss implementation, enforcement, reversals and reforms in the quest for constitutional democracy in Kenya in the context of at least three key themes: First, presidential electoral justice, and the conduct of free, fair, accurate, verifiable, accountable and transparent general elections. Second, significance of democratic political party nomination and governance. Third, the quest for tribal equity, integrity and general constitutionality or legality in electoral administration and governance. The Constitution of Kenya 2010 is transformative and a progressive legal instrument that if fully implemented, it can fulfil Kenya’s aspirations for democratic governance. If fully implemented, Kenya can achieve its political and socio-economic aspirations. I have argued in most of my publications that the search or quest for a new constitutional dispensation in Kenya seeks to rationalize and secure equity regarding the role of the state in the economy and particularly to address the problem of primitive accumulation by state or political elite. Moreover the quest also seeks to end or reduce authoritarianism and secure liberties through the rule of law, human rights, social justice and constitutional democracy. Briefly, the search for a new constitutional dispensation in Kenya has been the quest for economic, political and social justice, equity and egalitarianism.2 1 To revise using BS comments on LSK Journal version; and new developments…..To consider locating this chapter in the early part of CODRALKA 1. 2 See Ben Sihanya (forthcoming 2017) Constitutional Democracy in Kenya and Africa Vol. 2: Presidency, Bureaucracy and Administrative Justice in Kenya; Revised Teaching Notes on Constitutional Law and Comparative Constitutional Law by Ben Sihanya 2004-2017, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya; Ben Sihanya (2017) “Introduction to Constitutional Law in Kenya,” Class 2 Teaching Notes for LLB I Constitutional Process, University of Nairobi Law School, (2004-2019), Innovative Lawyering & Sihanya Mentoring, Nairobi & Siaya, Kenya. 1 The Constitution of Kenya 2010 was written and adopted to provide solutions to the challenges Kenyans have experienced since independence, and to address future constitutional aspirations or commitments. Why focus on elections? First, because it is one of the three cornerstones of sovereignty and constitutional democracy. Second, because elections provide an opportunity to fill the following important offices in governance and public administration: One (1) President, One (1) deputy President, 47 County Governors, 47 Senators, 47 County Women representatives of the National Assembly, thousands of Members of County Assembly (MCA).3 Third, elections provide an opportunity to debate and decide on how Kenyans are to be governed. Fourth, free and fair elections provide a basis for good governance and constitutional democracy. The President, Governor, Senators, Members of the National Assembly (MPs), members of the county assemblies (MCAs) and all are made aware that they are chosen to lead and follow the law or else they will be recalled, voted out next time, imprisoned or disqualified from holding any public office. Certainty of assuming office and corrupted elections have created a sense of entitlement and corrupted most governance institutions. They have become non-accountable. Elections have raised anxiety and tensions as some incumbents and opponents use any means to retain or acquire power in a context where the Independent Electoral and Boundaries Commission (IEBC) is largely non-compliant, incompetent, partisan and lawless. 24.2 Kenya’s emerging electoral jurisprudence The emerging electoral jurisprudence in Kenya especially on presidential and gubernatorial election petitions (2013-2017) showed lack of fidelity by the Supreme Court, and some Court of Appeal as well as some High Court benches, to the progressive electoral regime under the Constitution of Kenya 2010 and the relevant statutes. Remarkably, some High Court and Court of Appeal judges exhibited remarkable judicial independence, insight and integrity in electoral matters. Kenya’s electoral code consists of the Constitution of Kenya 2010; the relevant statutes; regulations and rules; policy instruments; and operational guidelines. The following list captures the extant electoral code and proposed instruments. The instruments are in the order of their relevance with regards to the electoral process or cycle. 24.2.1 Acts on electoral justice 1. Political Parties Act, 2011, Cap 7B, Revised Edition 2012 [2011] (Amended 2017). 2. Political Parties (Amendment) Act, No. 2 of 2016 (Kenya Gazette Suppl. No. 112)7/7/16 3. Political Parties (Amendment) Act, No. 14 of 2016 (Kenya Gazette Suppl. No. 80) 20/5/16 4. Political Parties (Amendment) Bill No. 2 of 2016 (Kenya Gazette Suppl. No. 2) 5/12/216 5. Political Parties Act, 2017, Cap 7A Revised Edition 2010 [2007] (Repealed and replaced) 6. Independent Electoral and Boundaries Commission Act, No. 9 of 2011 (Amended 2017). 7. Elections Act, No. 24 of 2011 (Revised Edition 2015 [2012]) (Amended 2017). 3 Article 136 provides for the Election of the President; Article 180 on the Election of Governors; Article 97(1)(b) and 98 (1)(a); Article 89(1) for Members of the National Assembly. 2 8. Election Laws (Amendment) Act No. 1 of 2017 (Kenya Gazette Suppl. No. 4) 16/1/17 9. Election Laws (Amendment) Act No. 36 of 2016 (Kenya Gazette Suppl. No. 157) 6/1/17 10. Election Offences Act, No. 37 of 2016 11. Publication of Electoral Opinion Polls Act, No. 39 of 2012 12. Election Campaign Financing Act, No. 42 of 2013 (Revised Ed. 2016 [2012] (Suspended to post 2017 General Elections). 24.2.2 Regulations on electoral justice 1. Elections (Technology) Regulations, 2017 (Kenya Gazette Supplement No. 61) 21/4/2017 2. Elections (Party Primaries and Party Lists) Regulations, 2017 (Kenya Gazette Supplement No. 62) 21/4/2017 3. Elections (Voter Education) Regulations, 2017 (Kenya Gazette Supplement No. 63) 21/4/2017 4. Elections (General) (Amendment) Regulations, 2017 (Kenya Gazette Supplement No. 64) 21/4/2017 5. Elections (Registration of Voters) Regulations, 2012 6. Elections (Voter Education) Regulations, 2012 (Amended 2017) 7. Elections (General) Regulations, 2012 (Amended 2017) 8. Rules of Procedure on Settlement of Disputes, 2012 9. Elections (Parliamentary and County) Petition Rules, 2013 (Revoked and replaced) 10. Elections (Parliamentary and County) Petition Rules, 2013. 24.2.3 Policies on electoral justice 1. IEBC’s Call for Public Input on Proposed Elections ICT Regulations, October 26, 2017. 24.2.4 African or Transnational Instruments 1. African Charter on Democracy, Elections and Governance, 2007 (Ratified 2012) 2. Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government, AHG/Decl. 5 (XXXVI) The following two are crucial in appreciating and implementing Kenya’s electoral code: Emerging case law or jurisprudence; Emerging administrative and quasi-judicial decisions.4 Kenya’s electoral justice has been compromised at the altar of political expediency, especially tribal MIBSA: manipulation, intimidation, bribery, stealing of votes at the stage of counting, polling and even scrutinising, as well as threatened or actual arson, assault and assassination.5 4 Some of the relevant, if not controversial, decisions include those regarding electoral matters by the Independent Electoral and Boundaries Commission (IEBC) under the IEBC Act, the Ethics and Anti-Corruption Commission (EACC) under the EACC Act; Public Procurement Advisory Review Board (PPARB) under the Public Procurement and Asset Disposal (PPAD) Act, 2015; and the Commission of Administration of Justice (CAJ) under the CAJ Act. 3 Presidential electoral injustices are part of tribal domination or hegemony, or what Prof ES Atieno Odhiambo has called “ethnic-based hegemonic enterprises.”6 The promulgation of the Constitution of Kenya on 27 August 2010 was a turning point for Kenya’s electoral and general governance system. The Constitution embodies rules, principles and values or norms that form the basis of representation, participation and governing Kenya. It also incorporates international, regional and foreign or comparative laws which Kenya has agreed to or which are part of or “general rules of international law” or state practice (Article 2 (5) and (6).7 The Constitution is the basic and supreme law and any law
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