BY AHMED ISAACK HASSAN
Politicians and aspirants for political posts have always used fund-drives and harambees to entice voters and to influence their manner of voting. This has, to a great extent, compromised the quality of leadership that is eventually elected. The Elections Act has tried to address this issue, however its implementation may be challenging for the Commission.
Section 26(1) of the Elections Act, 2011 bars any person who directly or indirectly participates in any manner in any or public fundraising or harambee within eight months preceding a general election or during an election period. If it is established that a person contravened this provision, the person shall be disqualified from contesting in the election held during that election year or election period.
The time period envisaged under section 26(1) of the Act is within eight months preceding a general election or during an election period in any other election. Working with 14th August 2012 as the date for the next general election, any person who from, 15th December 2011 directly or indirectly participates in fundraising activity other than his own or his party’s for an election under the Act shall be disqualified from contesting in such election. For purposes of any other election other than the general election, the period referred to is from the time the Commission publishes the notice for a presidential, parliamentary or county election under sections 14, 16, 17 and 19 of the Act and the Gazettement of the results of such election.
To effectively monitor and enforce this provision, the Commission will set up a Committee to start monitoring this aspect. Essentially all eligible voters are potential candidates and the task of monitoring over 12 million persons poses a great challenge to the Commission.
Since the Commission is required by Clause 15 of the Electoral Code of Conduct under the Elections Act, 2011 to establish an Electoral Code of Conduct Enforcement Committee for purposes of enforcing the provisions of the Code, the Commission is considering expanding the responsibilities of the Committee to monitor and enforce compliance of candidates and political parties with the provisions of the electoral laws. The Clause requires that the Committee be composed of five (5) members of the Commission. The chairperson of the Committee shall be a member of the Commission appointed by the Chairperson with qualifications of a High Court Judge. The Committee may have a member of staff as the secretary of the Committee. This Committee may develop rules of conduct for their operations.
Participation of public officers in elections
Section 43(5) of the Elections Act requires that any public officer who intends to contest an election to resign from public office at least seven months before the date of election. This however does not apply to-
(a) the President;
(b) the Prime Minister;
(c) the Deputy President;
(d) a member of Parliament;
(e) a county governor;
(f) a deputy county governor;
(g) a member of a county assembly.
If elections are to be held on 14th August 2012, such officers should therefore resign by January 14th 2012.
Article 91(2) of the Constitution provides that no political party should engage in or encourage violence by, or intimidation of, its members, supporters, opponents or any other person. A political party seeking registration under section 7 of the Political Parties Act, 2011 has to undertake to be bound by the Code of Conduct provided in the First Schedule of the Act. Clause 7 of the Code provides that a political party shall not engage in or encourage violence by its members or supporters. The Commission and the office of the Registrar of Parties condemn violence, which occurred in Rongo, Homabay County.
(Ahmed Isaack Hassan is the Chairman of the Independent Electoral and Boundaries Commission)