Note to IEBC.pdf

International Centre for Policy & Conflict (ICPC) © 2011

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Note on Fundamental Right to Information and Decriminalization of Politics under the Elections Act, 2011 and the Role of IEBC

1. Introduction

The international Centre for Policy and Conflict (the Centre) is a not-for-profit organisation registered as such in Kenya. The centre focuses on, amongst other issues, public policy research and dissemination, access to justice and the rule of law, good governance and human rights issues. As part of its mandate, the centre engages key stakeholders both in the public and private sectors on these issues with a view of sharing its perspectives and collectively contributing to a more free and democratic culture in Kenya and the region. Following the enactment of the Elections Act, 2011, the centre undertook independent research on how best it can be implemented within the context of the new constitution while also meeting the democratic threshold enshrined in the constitution. Needless to say that elections in independent Kenya have been marred by innumerable incidences of violence and lack of transparency and accountability. Within this context, the credibility of candidates for elective positions is just as important and the process itself. This note is intended to expound on the issue of the right of the electors to sufficient personal information on the candidates before elections. In true democracy, sufficient information on the candidates is inherently part of the electors’ freedom to make informed choice and cannot be taken lightly.

2. Background Information

In recent history, an unfortunate pattern has emerged of violence in elections in Kenya during general elections, by-elections and even civic elections. Most of these incidences are often blamed on party nominations and poor management of elections by institutions mandated to do so, especially the former Electoral Commission of Kenya (ECK). However, one aspect often ignored and which several researches and established practises have addressed themselves to is the question of credibility of candidates themselves for elections to positions of public office. Indeed, the issue of credibility goes to the core of the constitutional right to information so that the public can make informed decisions on the candidates prior to elections. According to the current practise, the electorate tend to be informed, rather belatedly, of the criminal character of their representatives once they have been elected with no recourse at their disposal. This has direct implication not only on the quality of services they potentially receive from such candidates but also their fundamental right to proper information under the constitution. The IEBC, just like in other established jurisdictions, has a central role in reversing this trend and guaranteeing the electorates’ fundamental right to information about the candidates before elections.

3. Applicable Law

Perhaps unlike in the past, the IEBC has clear legal backing to enforce this principle and ensure that candidates for elections meet the highest credibility test including


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their criminal history and financial probity. In fact, the law allows the IEBC some latitude such that the candidates can be obligated to provide this information under oath. As part of accountability mechanisms expected of the IEBC, this information should then be publicly displayed to the electors prior to elections. Article 35 of the Constitution on the right to information guarantees this basic idea of electors being seized of adequate information, including criminal and financial history of the candidates, in exercising their freedom of choice as anticipated under article 38 (2) and (3). This information is pertinent to help the electors make informed decisions on the candidates. Though rarely admitted, it is a fact that previous conduct of the candidates informs their actions once elected. It would therefore be reasonable, within the meaning of article 38 (3) (3) of the constitution, for IEBC to restrict participation of candidates in elections based on their criminal background and financial probity (including tax compliance and indebtedness to public institutions).

Moreover, as aspiring public/state officers, candidates for elective positions must address themselves to the strict requirements of article 73 of the constitution and the wider chapter six on leadership and integrity. This requirement calls for high standards of probity on the part of public officers. Candidates with vexing criminal record and wanting financial history can hardly meet this test. The IEBC, being a public institution, cannot itself justify failure to enforce these requirements.

It is important to note that even though the Elections Act, 2011 has not expressly addressed itself to these constitutional requirements, it accords the IEBC express powers to formulate such laws and regulations that will guide proper conduct of nominations and elections. In particular, section 109 (1) (c) of the Act mandates IEBC to make regulation that;

‘...provide for the regulation of the process by which parties nominate candidates for elections’

This power is to be exercised by the IEBC by formulating regulations ‘at least six months’ to the general elections in terms of section 109 (3). It is within this context that the IEBC must take the initiative and formulate regulations that will guide political parties in undertaking nominations while insisting on ‘cleaning’ politics in Kenya. Inevitably, the regulations must incorporate need for potential candidates to mandatorily declare their criminal background and financial probity.

4. Comparative Jurisdictions on this Issue

In taking this pragmatic step, the IEBC will be playing its rightful role in ensuring transparent and credible elections in Kenya while also drawing on best election practices worldwide. We opine that IEBC will also be saving the country of pre-emptive litigation which may delay elections purely on this issue. Undoubtedly, the best experience is from India, the world’s best biggest democracy. Several jurisdictions have implemented this requirement including Australia, Canada and the UK. But perhaps the best example for Kenya on this issue in recent times is India. In a precedent setting ruling, India’s Supreme Court in the Union of India –vs- Association of Democratic Reforms & Another (Civil Appeal No. 7178/2001) had this to


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say while directing the Electoral Commission of India (ECI) (Kenya’s equivalent of IEBC) to amend its electoral rules;

Under our constitution, Article 19 (1) (a) provides for freedom of speech and expression. Voters’ speech and expression in case of election would include casting the votes that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter’s (little man citizen’s) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law breakers as law makers’ (emphasis added).

Subsequent to this ground breaking ruling, the ECI amended its electoral regulations to include the following, which we reproduce here for your ease of reference;

(1) Every candidate at the time of filing his nomination paper for any election to the Council of States, House of the People, Legislative Assembly of a State or the Legislative Council of a State having such a council, shall furnish full and complete information in regard to the following matters in an affidavit, the format whereof is annexed hereto as Annexure-1 to this order: a) Case(s) is/are pending against the candidate in which cognizance has been taken

by the court. b) Details of the assets (immovable, movable, bank balance, etc.) of candidate,

spouse and dependents c) Details of liabilities / over dues to public financial institutions and government

dues d) Educational qualifications (Name of School / University and the year in which

the course was completed should also be given. (2) The said affidavit by each candidate shall be duly sworn before a Magistrate of

the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State concerned.

(3) Non-furnishing of the affidavit by any candidate shall be considered to be violation of the order of the Hon’ble Supreme Court and the nomination of the candidate concerned shall be liable to rejection by the returning officer at the time of scrutiny of nominations for such non-furnishing of the affidavit.

(4) The information so furnished by each candidate in the aforesaid affidavit shall be disseminated by the respective returning officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available freely and liberally to all other candidates and the representatives of the print and electronic media.

(5) If any rival candidate furnishes information to the contrary, by means of a duly sworn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above. Candidates contesting local body elections are required to file similar affidavits.

In terms of Section 33A of the Representation of the People Act, 1951, read with Rule 4A of Conduct of Election Rules, 1961, each candidate has to file an additional affidavit in Form 26 appended to the Conduct of Election Rules, 1961, giving information on the following:

(a) Cases, if any, in which the candidate has been accused of any offence punishable with imprisonment for two years or more in a pending case in which charges have been framed by the court.

(b) Cases of conviction for an offence other than any of the offences mentioned in Section 8 of the Representation of the People Act, 1951, and sentenced to imprisonment for one year or more.


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What is discernible from the Indian experience is that electoral bodies, in our case the IEBC, have capacity to ensure compliance with important regulations like this. In Kenya’s case, the IEBC has additional powers vide section 109 (1) of the Elections Act to formulate these regulations. We accordingly urge the IEBC to seize the moment and effect these important electoral requirements at all electoral units established in the constitution. In fact with Kenya’s devolved structures, implementation of such regulations would largely follow India’s practise.

5. Conclusion

In conclusion, there is no doubt that the IEBC has a special role in ensuring that fundamental rights to information, of freedom of choice and expression are given effect in our electoral system. The legal support is already there and what remains is for IEBC to take more proactive steps and implement these requirements. In addition, the overriding need to help the electors appreciate the array of candidates is bestowed on the IEBC. In particular, we propose that IEBC takes the following steps in relation to the next general elections;

a) To invoke its powers under section 109 (1) (c) and formulate regulations through consultative process to guide nomination of candidates for election into public office.

b) To inform give effect to the constitution, particularly the chapter on leadership and integrity, by including in the formulated regulations that potential candidates for nomination must be utmost financial probity including not owing anything to public institutions and declaring their assets and those of direct dependants.

c) To require that potential candidates declare under oath both to their parties and to the IEBC (upon nomination) their criminal history including pending cases and potential sentences. This information must be shared with the public prior to the elections and, in case of criminal charges that attract sentences of more than 12 months then they are automatically disqualified.

d) To require that potential candidates produce tax clearance certificates from the Kenya Revenue Authority (KRA).

e) To require potential candidates to obtain clearance from Ethics and Anti-Corruption Commission in relation to corruption and related cases.

f) To require potential candidates to obtain clearance as to their compliance status from the Higher Education Loans Board (HELB) and other public institutions that he may be indebted to.

Note to IEBC.pdf

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