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The Link Between Poverty and the Right to Free, and Fair Elections in Kenya

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The Link Between Poverty and the Right to Free, and Fair Elections in Kenya THE LINK BETWEEN POVERTY AND THE RIGHT TO FREE, AND FAIR ELECTIONS IN KENYA. UNIVERSITY OF NAIROBI MULI STEPHEN MUSILI G62/7564/2017 Research Project submitted in partial fulfillment of the requirements for the degree of Master of Laws (LLM, Law, Governance and Democracy) OCTOBER 2020 i DECLARATION I, MULI STEPHEN MUSILI do hereby declare that this Research Project is my original work except where indicated by special reference in the text. This Research Project has not been submitted to any other institution for the award of a postgraduate degree or any other award in Kenya or elsewhere. Signed…………………………………………… Date……………………………….. Supervisor’s approval Signed ____________________ Date: _______________________ Prof Ben Sihanya, JSD (Stanford) Intellectual Property and Constitutional Professor, Public Interest Advocate and Mentor University of Nairobi Law School and Sihanya Mentoring. ii ACKNOWLEDGMENTS This Research Project was made possible by the guidance and help I received from several individuals whose assistance and contribution should not go unmentioned. To begin with, I thank my supervisor Professor Ben Sihanya for the wisdom, guidance, patience, and continued intellectual support throughout the research process. I feel honored to have worked with such a passionate Professor and a Mentor. Special thanks to my reader Dr. Nkatha Kabira for her guidance and corrections in the final document. I would also wish to pass my heartfelt gratitude to the faculty and staff members at the University Of Nairobi School Of Law for their valuable guidance and help throughout my course work and beyond. Their critique at the departmental and faculty level made this work more appropriate. I would be insincere if I fail to recognize and appreciate the passionate guidance offered to me by Professor Ben Sihanya’s research assistants at Sihanya Mentoring and Innovative Mentoring, Mr. Abrahim Mumo, and Mr.Eugene Owade. There was no single day you would fail to assist where I had got stuck. Thank you, gentlemen. I also thank my LLM 2017/2018 classmates whose support and company made my experience in Postgraduate studies enjoyable. Last but not least, I am indebted to my parents for educating me and for their passionate love, unconditional support, and continued moral and financial support as I pursued my higher studies. Their love and support gave me faith that helped me overcome the difficulties and pursue my dream passionately. This study was a success because of all your efforts. May the almighty God bless you abundantly in all your endeavors. And may All the Glory be to the Almighty God. iii DEDICATION This research project is dedicated to Joy Muller who has been a mother to me and sacrificed a lot to see me reach this far in terms of academics; My parents; My brother Benjamin; and lastly to all persons who kept encouraging me to finalize the project. iv LIST OF CASES 1. Centre for Rights Education and Awareness & 2 Others v Speaker the National Assembly & 6 Others (2016) eKLR 2. Fredrick Outa v Jared Odoyo Okello & 4 Others (2014) eKLR 3. Gilphine Omwenga v Independent Electoral & Boundaries Commission & 2 Others [2018] eKLR 4. Hassan Albeity v Abu Mohammed Chiaba & Another (2013) eKLR 5. Henry Okello v the Independent Electoral and Bounderies Commission& 2 Others [2013]eKLR 6. John Mwau & 2 others v Independent Electoral and Boundaries Commission & 3 others (2017)eKLR 7. Leo Obambo v Bonface Ouma Oremo & Another [2017] eKLR 8. Levi Makali v Koyi John Waluke & 2 others [2018] eKLR 9. Martha Karua & Another v Independent Electoral & Boundaries Commission & 3 Others [2018] eKLR 10. Mitubell Welfare Society v Hon. Attorney General and 2 Others [2013] eKLR 11. Mathew Okwanda v Minister of Health and Medical Services [2013] eKLR 12. Michael Mutemi v The Permanent Secretary Ministry of Education & Others [2013] eKLR 13. Musikari Kombo v Moses Wetangula & 2 Other (2015) eKLR 14. Nicholas Salat v Independent Electoral And Boundaries Commission & 7 Others [2013] eKLR 15. Peter Munya v Independent Electoral and Boundaries Commission, & 2 others [2017] eKLR 16. Peter Khasamule v Independent Electoral and Boundaries Commission (IEBC) & 2 others [2018] eKLR 17. Raila Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR 18. Robinson Simiyu & another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR v 19. Martha Karua v Independent Electoral & Boundaries Commission & 3 Others [2018] eKLR 20. Republic v Independent Electoral and Boundaries Commission Ex parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR 21. Satrose Ayuma & Others v The Registered Trustees Kenya Railways Staff Retirement Benefit 22. Scheme and 3 Others, Petition No. 65 of 2010 [2013] Eklr 23. Susan Kariuki & 4 Others v Town Clerk of Nairobi and 3 Others Petition No. 66 of 2010 [2013] eKLR 24. Timamy Abdalla v Independent Electoral and Boundaries Commission & 3 Others [2018] eKLR. 25. Wavinya Ndeti & Another v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR 26. Wavinya Ndeti v Independent Electoral and Boundaries Commission & 3 Others (2013) eKLR vi LIST OF CONSTITUTIONS AND CONSTITUTIONAL INSTRUMENTS Constitution of Kenya 1963 Constitution of Kenya 1969 Constitution of Kenya 2010 LIST OF TRANSNATIONAL INSTRUMENTS African Charter on Human and People's Rights (“Banjul Charter”) (adopted 27 June 1981, entered into force 21 October 1986 CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) Millennium Development Goals (adopted September 2000) (MDGs) Universal Declaration on Democracy (adopted 16 September 1997, Inter-Parliamentary Council (161st session) Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) United Nations Millennium Declaration (adopted 18 September 2000 A/RES/55/2 UN General Assembly (55th sess.: 2000-2001) LIST OF KENYAN STATUTES Elections Act No. 24 of 2011 Election Offences Act No. 37 of 2016 Election Campaign Finance Act No. 42 of 2013 Ethics and Anti-Corruption Commission Act No. 22 of 2011 Independent Electoral and Boundaries Commission Act No. 9 of 2011 Leadership and Integrity Act No. 19 of 2012 Political Parties Act No. 11 Of 2011 vii ABBREVIATIONS AND ACRONYMS ACHPR African Charter on Human and Peoples Rights ADR Alternative Dispute Resolution AG Attorney General CMD Centre for Multiparty Democracy CoK Constitution of Kenya ERS Economic Recovery Strategies ICESCR International Covenant on Economic, Social, and Cultural Rights IEBC Independent Electoral and Boundaries Commission JSC Judicial Service Commission KADU Kenya African Democratic Union KANU Kenya African National Union KLR Kenya Law Reports KNCHR Kenya National Commission on Human Rights MCA Member of County Assembly MDG Millennium Development Goals NARC National Alliance Rainbow Coalition NASA National Super Alliance NGO Non-Governmental Organization ODM Orange Democratic Movement SDG Sustainable Development Goals UDHR Universal Declaration of Human Rights UN United Nations URP United Republican Party UNMD United Nations Millennium Declaration viii ABSTRACT This study examines the interplay between poverty and free, and fair elections in Kenya. It explores historical, the legal, and institutional framework for elections in Kenya and, a few selected election irregularities common in Kenya to demonstrate that there is a correlation between poverty prevalence and the various election challenges inhibiting free, and fair elections. Although Kenya has held several elections even before independence with the institutional framework and the right to participate in free and fair elections expressly anchored in the law, nevertheless, the realization of the same has remained a mirage because of poverty. Poverty makes elections in Kenya costly for both the government and the electorates, attracts voter bribery, elections violence, costly electoral justice and, voters’ apathy amongst other ways that adversely affect the election process and the results thereof. The study argues further that poverty is largely perpetuated by political reasons in Kenya through deprivation of economic rights such as the hegemonic system created by the British administration and inherited by the post-colonial political elites, corruption which deters economic growth, unequal distribution of public resources, and power abuse by the government. Free and Fair election breads good governance and deters the election of bad leaders, holds bad leaders accountable through de-election, and enables citizens’ participation in decision making vital for economic development. The study relies on the Marxist theory of political economy to demonstrate the interplay between politics and the domination of the poor by the rich in politics, the elite theory, and the rational choice theory to demonstrate how poverty is applied to predict the voters’ behavior and actions at any particular time and the utilitarian theory to extrapolate the importance of addressing poverty challenge in Kenya. Using the doctrinal research methodology, the study exposes the historical antecedents of poverty challenges to free, and fair elections and the ineptness of the legal and institutional framework for the realization of free, and fair elections in Kenya. The study concludes
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