The Citizen Handbook


The Constitution of Kenya, 2010: The People’s Power


Elections: Representation of the People

Legal Framework on Elections

Constitutional Provisions

Our current Constitution’s electoral process is far more comprehensive than previous ones. Notably, it gives the explicit right of each citizen to vote and to compete as an electoral candidate, requires party lists during elections to ensure additional seats for special representation (i.e. women, youth, persons with disabilities and labour), and reinforces the value and privilege imbedded in the right to vote for leaders through democratic elections.

Chapter Seven of the Constitution outlines the electoral system and process, establishes the Independent Electoral and Boundaries Commission (IEBC), and defines the role of political parties in the electoral process. Meanwhile, Chapters Eight and Nine establish the country’s elective positions and qualifications for Parliament and the National Executive respectively. Chapter Eleven creates the elective positions and qualifications for elections to the 47 county executive committees and county assemblies. The Sixth Schedule gives a framework on how to handle elective posts and the electoral management body during the transition period.

Constitutional Principles of the Electoral System

Our nation’s electoral system must comply with specific principles outlined in Article 81 of the Constitution. These principles are as follows:
 ·         Freedom of citizens to exercise their political rights under Article 38;
 ·         Not more than two-thirds of the members of elective public bodies shall be of the same gender;
·         Fair representation of persons with disabilities;
·         Universal suffrage based on the aspiration for fair representation and equality of vote;
 ·         Free, fair and transparent elections, which are conducted by an independent body, with a secret ballot; and
 ·         Elections administered in an impartial, neutral, efficient, accurate and accountable manner in an environment that is free from violence, intimidation, and improper influence;

Overview of Key Provisionson Elections

 ·         Code of Conduct – Article 84 of the Constitution stipulates that all candidates and all political parties must comply with the code of conduct on the electoral process. Readers can find the Electoral Code of Conduct in the Second Schedule of The Elections Act, 2011.
 
Some key provisions of the Code of Conduct include certain principles during the election period, a process for enforcing the code and dealing with violators.The Code also establishes peace committees to reconcile disputes and prevent violence during the election period.
 ·         Voter registration–Voter registration is the process by which eligible voters register with IEBCfor eligibility to vote in an election. According to Article 83 of the Constitution, a person qualifies to register as a voter at elections and referenda if he/she is an adult citizen, is of sound mind, and not convicted of an elections offence during previous five years. An eligible voter may only register at one registration centre and the registration process should not prevent eligible citizens from registering.Furthermore, an eligible voter will need to have either a National Identity Card or Kenyan Passport at the time of registration. See Part 2 of The Elections Act, 2011 for more information on the law regarding voter registration to include the right to vote, the voters’ register, and the qualifications a person needs to register.
 ·         Recall of a Member of Parliament – Article 104 (1) provides the electorate the right to recall a Member of Parliament representing their constituency before the end of their term. According to Article 45 of The Elections Act, 2011, aMember may be recalled when he/she is found, after due process of the law, to have violated Chapter Six of the Constitution (Leadership and Integrity), mismanaged public resources, or been convicted of an offence under The Elections Act, 2011. A recall can only occur 24 months after the election and no later than 12 months immediately before the next general election. A Member of Parliament may have only one recall petition filed against him/her once per term. Furthermore, a person who unsuccessfully contested an election is not eligible, directly or indirectly, to initiate a petition for recall.See Part 4 of The Elections Act, 2011 for more on the recall of a Member of Parliament.
 ·         Independent candidates–Aperson does not have to be a member of a political party in order to be a candidate for one of the six elective positions. According to Article 85 of the Constitution, any person may contest elections as an independent candidate if he/sheis not a member of a registered political party and has not been a member for at least three months immediately before Election Day. A person must also satisfy the specific nomination requirements for independent candidates for election to the National Assembly, Senate or to one of the 47 county assemblies. See The Elections Act, 2011 for more information on independent candidates.
 ·         Voting, vote counting and results – According to Article 86 of the Constitution, IEBC is responsiblefor ensuring that the voting method used during every election is simple, accurate, verifiable, secure, accountable, and transparent. Moreover, the Commission is responsible for implementing structures to prevent electoral malpractice and to ensure that each polling station promptly counts and tabulates votes and announces the election results.
 ·         Allocation of party list seats –The allocation of party list seats uses a proportional system outlined in Article 90 of the Constitution, which stipulates that the nominated seats in the National Assembly, Senate, and the 47 county assemblies are determined through nomination by party lists submitted to IEBC before a general election.

Political parties will submit their lists prior to the general election. The list must be organised in priority order and cannot change after submission. Except in the case of the 16 women-only nominated seats for the Senate, the lists must alternate between male and female candidates and must not contain the name of any presidential or deputy presidential candidate. The party lists for the National Assembly and Senate nominated seats must also reflect the regional and ethnic diversity of the country Once the election results are official, IEBC bases the allocation of seats on the proportion of the total seats won by candidates of the politica p arty in the National Assembly, Senate and the 47 county assemblies respectively. See Part 3 of The Elections Act, 2011 and election regulations released by IEBC for more information on how to allocate seats under the party list system.
 ·         Electoral disputes –Disputes are common in an electoral process but they should be resolved peacefully. Article 87 of the Constitution requires the quick and just resolution of disputes and allows citizens to petition the Court in dispute of the results within 28 days of their declaration by IEBC. This petition process allows citizens to dispute the results of an election but does not include Presidential elections, which has a different process mentioned in the section on presidential elections later in this chapter. Part Seven of The Elections Act, 2011, provides the dispute resolution mechanisms referred to in Article 87 and above.

When Do You Register as a Voter?

The IEBC usually announces a nationwide voter registration period before a general election or referendum. The Commission declared a national voter registration drive from November 2012. Registration will occur 8am-5pm daily including on weekends.
Source: ABC of Voter Registration, IEBC (2012)

Allocation of Party List Seats

"Within thirty days after the declaration of the election results, the Commission shall designate, from each qualifying list, the party representatives on the basis of proportional representation.”
- Article 36(4),The Elections Act, 2011

The Elections Act, 2011

Article 82(1) of the Constitution directs Parliament to enact legislation to provide for key aspects of the electoral process including:
 ·         delimitation of electoral units;
 ·         nomination of candidates;
 ·         continuous registration of citizens as voters;
 ·         supervision of elections and referenda to ensure it is simple, transparent
 ·         conduct of elections that takes into account the needs of special groups; and
 ·         registration of eligible Kenyan diaspora as voters.

The Elections Act, 2011, signed into law on 27 August 2011, is the primary law governing the conduct, oversight, and management of the electoral process. The Act addresses the above-mentioned aspects of elections outlined in Article 82 (1) of the Constitution. It addresses other aspects of elections including, but not limited to,the processes to resolve electoral disputes, recall members of Parliament, and nominate candidates. The Act also establishes the Electoral Code of Conduct and outlines electoral offences and the punishments for violators of the Act.

The IEBC Act, 2011

Article 88 of the Constitution establishes IEBC as the independent body responsible for conducting and supervising any election. The Independent Electoral and Boundaries Commission Act, 2011(also referred to as The IEBC Act), which became law on 5 July 2011, is intended to assist with establishing and appointing IEBC and to further define the Commission's roles and responsibilities. The IEBC Act, among other things, specifically:
 ·         provides for the operations, powers, responsibilities and functions of IEBC to supervise elections and referenda at thenational and county levels;
 ·         establishes legal framework to identify and appoint the Commission's chairperson, members and secretary; and
 ·         prescribes the manner in which the Commission will exercise its powers, responsibilities, and functions.

The IEBC Act addresses the above mentioned aspects of the Commission outlined in Article 88 of the Constitution. It addresses other characteristics of IEBC including, but not limited to, prescribing how the Commission conducts its work, funding mechanisms, and specific procedures for appointing the Commission chairperson and its members. The Act also establishes Code of Conduct for Members and Employees of the Commission.Section 1.3.3 of this Chapter covers the IEBC in detail.

The Political Parties Act, 2011

Political parties are important stakeholders in the electoral process, specifically in terms of candidate nominations, election monitoring, and participating in the election campaign period. Article 92 of the Constitution directs Parliament to enact legislation to provide requirements for political party finance, registration and establish a mechanism to regulate political parties. The Political Parties Act, 2011, which became law on 27 August 2011, provides, among other things, the:
 ·         requirements of a political party;
 ·         rights and privileges of a political party;
 ·         establishment of a ‘Political Parties Fund’ and ‘Registrar of Political Parties’;
 ·         regulation of party financial reporting related to elections; and
 ·         process of forming coalitions among two or more political parties.

The Political Parties Act also addresses other aspects of the political parties, which include, but are not limited to, specific roles and functions of the Office of the Registrar of Political Parties, regulations on political party funding and assets, and ways in which political parties may form coalitions and merge their structures. The Act also establishes the Political Parties Disputes Tribunal to hear and settle party disputes. Section 1.3.4 of this chapter covers political parties in detail.

The Leadership and Integrity Act, 2012

Leadership and integrity are important qualities to consider when choosing any leader. This is especially important during times of elections when voters must consider the positions and programs of many different candidates all competing for a limited number of elected positions. Chapter Six of the Constitution provides citizens with specific principles on leadership and integrity. These principles can be useful to voters when judging whether a candidate has the necessary qualities to serve as their representative in government. As mentioned in Section 1.2.6 of this handbook, The Leadership and Integrity Act, 2012 establishes a Leadership and Integrity Code. This code covers various issues areas such as citizenship, public trust, and financial integrity. It also deals with matters related to the personal behaviour of leaders like impartiality, bullying, and the conduct of private affairs. The Leadership and Integrity Code can be useful to voters when deciding which candidates are likely to serve them best. The Act also requires candidates for State office to submit to the public specific pieces of personal information. Clause 13(2) of the Act states that candidates for elected State office must submit a self-declaration form to the IEBC. Found in the First Schedule of the Act, the self-declaration form collects several pieces of relevant information from a candidate including marital status, country of birth, and educational qualifications. It also asks a series of yes or no questions on moral and ethical issues. By completing this form, candidates are giving important details about their lives, experiences and interests, which will provide a greater level of transparency on candidates vying for elected office.

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