The Citizen Handbook


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


Elections: Representation of the People

Elective Positions

Elective positions are those positions that require an election through a secret ballot by registered voters. On Election Day, each registered voter will have to vote for six different elective positions, which are:
     (1) The President;
     (2) Senator (Senate);
     (3) Member of the National Assembly;
     (4) One woman representative from each county(National Assembly);
     (5) Governor; and
     (6) Ward Representative (County Assembly).

There are no directly elections for candidates for Deputy President and Deputy Governor. These candidates serve as the running mate of the President and Governor respectively and their name will appear on the ballot next to the President or Governor candidate who nominated them. There is no separate election for the Deputy President and Deputy Governor, but a candidate for either position will win if the candidate who nominated them as a running mate (President or Governor respectively) wins the election. The table below highlights each of the six positions a voter will choose through elections.

Overview of Elective Positions

Level

 

Elective Position

 

Body

National

>

President (and Running Mate)

>

National Executive

County

>

Senator

>

Parliament: Senate

County

>

Women Representative

>

Parliament: National Assembly

Constituency

>

Member of National Assembly

>

Parliament: National Assembly

County

>

Governor (and Running Mate)

>

County Executive

Ward

>

Ward Representative

>

County Assembly

Adapted from “A Handbook on Elective Positions,” IEBC, 2012.

President

The President is the head of the Executive branch of the National Government and Commander-in-Chief of the Kenya Defence Forces. Below is an overview of the functions of the President, procedures for presidential elections and candidate qualifications as written in the Constitution.

Presidential Authority

The President has specific authority outlined in Article 131 of the Constitution and listed below:
     ·         is the head of State and Government;
     ·         exercises the executive authority of the Republic, with the assistance of the Deputy President and cabinet secretaries;
     ·         is the Commander-in-Chief of the Kenya Defence Forces;
     ·         is the chairperson of the National Security Council; and
     ·         is a symbol of national unity

The President shall also -
     ·         respect, uphold and safeguard the Constitution;
     ·         safeguard the sovereignty of the Republic;
     ·         promote and enhance the unity of the nation;
     ·         promote respect for the diversity of the people and communities of Kenya; and
     ·         ensure the protection of human rights and fundamental freedoms and the rule of law.

Functions of the President

Article 132 of the Constitution outlines the basic functions of the President. They are as follows:
     ·         address the opening of each newly elected Parliament;
     ·         address a special sitting of Parliament at least once every year;
     ·         address the nation annually on all actions taken and progress achieved in realising the national values referred to in Article 10 of the Constitution;
     ·         submit an annual report for debate to the National Assembly on the progress made in fulfilling the nation's international obligations;
     ·         nominate and, with approval of the National Assembly, appoint, and dismiss constitutional Executive Government posts (e.g.cabinet secretaries, attorney-general, ambassadors, etc.);
     ·         chair cabinet meetings and both direct and co-ordinate the functions of ministries and government departments;
     ·         assign responsibility for the implementation and administration of any Act of Parliament to a cabinet secretary so long as it does not conflict with any Act; and
     ·         ensure that the international obligations of the Republic are fulfilled through the actions of the relevant cabinet secretaries.

The President may also:
     ·         perform other executive functions provided for in the Constitution or in national legislation;
     ·         establish an office in the public service in accordance with the recommendation of the Public Service Commission;
     ·         receive foreign diplomatic and consular representatives;
     ·         confer honours in the name of the people and the Republic;
     ·         declare a state of emergency in accordance with Article 58 of the Constitution; and
     ·         declare war with approval from Parliament.

Functions of the Deputy President

Article 147 (1) of the Constitution outlines the basic functions of the Deputy President, which are as follows:
     ·         be the principal assistant of the President and be deputised by the President in certain instances to the execute the President’s functions;
     ·         perform the functions provided in the Constitution and any other functions the President may assign;
     ·         act as President, subject to the Constitution (Article 134), when the President is absent or is temporarily incapacitated, and during any other period that the President decides; and
     ·         must not hold any other State or public office.

Qualifications for President

There are specific requirements in the Constitution that a person must meet to be eligible to be a candidate for President or nominated as a Deputy President by his/her presidential running mate. The qualifications are as follows:
     ·         hold a university degree recognized in Kenya;
     ·         be a citizen by birth;
     ·         qualify to be a member of Parliament;
     ·         be nominated by a political party or,if an independent candidate,be nominated by at least 2,000 voters from at least 24 counties;
     ·         declare a running mate before the election to be Deputy President if he/she wins a Deputy President running mate must meet the same qualifications as a candidate for President;
     ·         does not owe allegiance to a foreign state; and
     ·         must not be a public officer or is not serving in any State or other public office (this does not apply to a sitting President, Deputy President or member of Parliament).

Presidential Elections

A President’s term is five years and is limited to only two terms. The Elections Act, 2011 and election regulations developed by IEBC outline the specific procedures for presidential elections. Article 136 of the Constitution, however, provides general procedures for presidential elections. They are as follows:
     · Candidate nominationIf there is only one candidate nominated for President, there will be no election, and he/she will be the President. Elections will occur in each constituency throughout the country where there are two or more nominated candidates for President.
     · Absolute majorityA candidate is the winner of the presidential elections if he/she gets a total national vote of at least 50 per cent plus 1 vote (also known as an ‘absolute majority’) and at least 25 per cent of total votes cast in at least 24 counties.

The Formula for Victory: Presidential Election

More than half of all the valid votes cast in the election (50% +1)

+

At least 25% of the valid votes cast in at least 24 counties

=

Winner of the presidential election

Adapted from “A Handbook on Elective Positions,” IEBC, 2012.

 
     · Run-off election – If no candidate gets the required number of votes, then the top-two candidates with the most votes will compete in a second election, known as a run-off. The run-off election for President, according to Article 138(5) of the Constitution, "shall be held within thirty days after the previous election,"and the presidential candidate with most valid votes in the run-off elections is the winner. 

The Formula for Victory: Presidential Run-Off Election

Top Two Candidates

>

Elections within 30 Days

>

Most Votes in the Fresh Elections

=

Winner of the presidential run-off election

Adapted from “A Handbook on Elective Positions,” IEBC, 2012.


     · Declaration of resultsThe IEBC Chairperson must declare the results of the election and deliver a written notification of the results to the Chief Justice of the Supreme Court and the current President within seven days after the election.
     · Disputing the results– A person may challenge the official results of the presidential election by petitioning the Supreme Court within seven days after they are officially declared by the Chairperson of IEBC. The Court must review and rule on the petition within 14 days; its decisions is final. If the Court determines the presidential elections are invalid, a fresh election is held within 60 days.  

Parliament

Parliament represents the national legislative authority of the Republic. This authority exercises its legislative power through bills it passes. The role of Parliament is to represent the diversity of the nation and the will of the people. Parliament may consider and pass amendments to the Constitution and alter county boundaries. The national legislative authority also must protect the Constitution and promote democratic governance in the country.


The term of Parliament is five years and there is no limit on how many terms a person may serve. The Elections Act, 2011 and election regulations developed by IEBC provide specific processes for parliamentary elections.Article 99 of the Constitution stipulates specific qualifications and disqualifications for a candidate for Parliament. They are as follows:
 Parliament consists of two bodies: (1) National Assembly and (2) Senate. Each parliamentary body has specific roles and a different number of elective and nominative positions, and each has a Speaker who serves as an ex-officio member.The following tables provide an overview of the specific role and composition of each body in Parliament as well as the procedures and candidate qualifications for parliamentary elections as written in the Constitution.

Parliament Composition

 

National Assembly

Senate

Elective Positions

290 members, each elected by the registered voters of a single member constituency

47 women each elected by the registered voters of the counties,which comprises a single member constituency

47 members, each elected by the registered voters of the counties each consisting of a single member constituency

Nominative Positions

12 members representing special interests seats (i.e. the youth, persons with disabilities and workers) nominated by parliamentary political parties through party lists according to their proportionate members of the National Assembly

One Speaker of the National Assembly who serves as an ex-officio member and is selected by the membership of the National Assembly, but may not be chosen from amongst existing National Assembly members

16 women members nominated by political parties

2 members(1 man and 1 woman) nominated by political partiesrepresenting the youth

2 members(1 man, and 1 woman) nominated by political parties representing persons with disabilities

One Speaker of the Senate who serves as an ex-officio member and is selected by the membership of the Senate, but may not be chosen from existing Senators

Articles 97 (1) and 98 (1), The Constitution of Kenya, 2010


Roles of Parliament

National Assembly

Senate

According to the Constitution, the specific role of the National Assembly includes the following:

· represent the people of the constituencies and special interests;

· deliberate on and resolve issues of concern to the people;

· enact legislation in accordance with the Constitution;

· determine the allocation of national revenue between the levels of government, as provided in the Constitution;

· appropriate funds for expenditure by the national government and other State organs;

· exercise oversight over national revenue and its expenditure;

· review the conduct in office of the President, the Deputy President and other State officers and initiate the process of removing them from office (impeachment), if necessary;

· exercise oversight of State organs; and

· approve declarations of war and extends of states of emergency.

According to the Constitution, the specific role of the Senate includes the following:

· represent the counties, and serve to protect the interests of the counties and their governments;

· participate in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided for in the Constitution;

· determine the allocation of national revenue among counties, as provided in the Constitution;

· exercise oversight over national revenue allocated to the county governments; and

· participate in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with the Constitution.

Article 95, The Constitution of Kenya, 2010

Article 96, The Constitution of Kenya, 2010

Candidate Qualifications and Disqualifications

Qualifications

Disqualifications

According to the Constitution, the qualifications a person must meet to be a parliamentary candidate are as follows:

· be a registered voter;

· hold a post-secondary qualification;

· satisfy moral and ethical requirements set by the Constitution and relevant Acts of Parliament;

· either:

(1) be nominated by a political party; or

(2) be an independent candidate nominated by:

a. at least 1,000 registered voters from the constituency where he/she is contesting for the National Assembly; and

b. 2,000 registered voters from the county where he/she is contesting for the Senate.

According to the Constitution, the following will disqualify a person from being a parliamentary candidate:

· is a State or public officer, other than a member of Parliament;

· was a member of the IEBC in the last 5 years before the election date;

· has not been a citizen for at least 10 years before the election date;

· is a member of a county assembly;

· is of unsound mind;

· has been declared bankrupt;

· has been sentenced to at least 6 months in prison at the time of registering as a candidate or the date of elections; or

· hasbeen found to have misused or abused a State or public office.

Article 99, The Constitution of Kenya, 2010

County Assembly

The county assemblies serve as the legislative arm of the county government. More information about the county assemblies is available in Chapter 3 of this handbook, which deals with role of the county assemblies in the devolution process. Below is an overview of the specific role and composition of the county assemblies as well as the procedures and candidate qualifications for county assembly elections as written in the Constitution. Article 193 of the Constitution consists of specific qualifications and disqualifications for a county assembly candidate. They are as follows: Candidate Qualifications and Disqualifications

Qualifications

Disqualifications

According to the Constitution, the qualifications a person must meet to be a parliamentary candidate are as follows:

· be a registered voter;

· hold a post-secondary qualification;

· satisfy moral and ethical requirements set by the Constitution and relevant Acts of Parliament;

· either:

(1) be nominated by a political party; or

(2) be an independent candidate nominated by:

a. at least 1,000 registered voters from the constituency where he/she is contesting for the National Assembly; and

b. 2,000 registered voters from the county where he/she is contesting for the Senate.

According to the Constitution, the following will disqualify a person from being a parliamentary candidate:

· is a State or public officer, other than a member of Parliament;

· was a member of the IEBC in the last 5 years before the election date;

· has not been a citizen for at least 10 years before the election date;

· is a member of a county assembly;

· is of unsound mind;

· has been declared bankrupt;

· has been sentenced to at least 6 months in prison at the time of registering as a candidate or the date of elections; or

· has been found to have misused or abused a State or public office.

Article 99, The Constitution of Kenya, 2010

The County Assembly, according to Article 177 (1) of the Constitution, consists of both elective and nominative positions, as well as the Speaker who serves as an ex-officio member. The elective and nominative positions, as outlined in Article 177 (1), are as follows:

 Elective and Nominative Positions

Elective Positions

Nominative Positions

One ward representative elected from the registered voters of each ward in the county

A number of candidates to ensure that no more than two-thirds of the membership of any county assembly is from the same gender

A number of members nominated by political parties representing persons with disabilities

A numbermembers nominated by political parties representing the youth

Articles 177 (1), The Constitution of Kenya, 2010

Elections

Members of the county assemblies serve five-year terms. Unlike the President, Deputy President and the 47 county governors and their deputy governors, there is no limit on how many terms a person can serve in a county assembly. If there is only one nominated candidate for an elective position in a ward, he/she automatically wins that position. If there are two or more nominated candidates for an elective position in a ward, that position have an election. Registered voters directly elect members of the county assembly by a plurality formula, meaning the candidate with greatest number of votes in the ward is the winner of the election.

Nominations

There are several nominative positions in the county assemblies. These positions include a number of nominated seats for marginalized groups (including Persons with Disabilities and youth), as well as a number of special seats to ensure that no more than two-third of the county assembly's members is from the same gender. These positions are determined through party lists, which political parties submit to IEBC prior to elections. The party lists must rank candidates in order of priority and they cannot change once political parties submit them. According to Article 7 (2) of The County Governments Act, 2012, nominated party lists for county assembly must have candidates that reflect the community and cultural diversity of the county and there must be adequate representation to protect minorities within the county. The actual number of persons nominated to the county assembly will depend on the number of wards determined by the IEBC in each county.

County Governor

A county governor is the leader of the county’s executive committee, which is in charge of the executive functions of county government.The executive committee consists of a Governor, Deputy Governor and members appointed by the Governor and approved by the National Assembly. A member of the executive committee can be a member of any county assembly and vice versa. 

Qualifications

In order to be a candidate for county governor, a person must hold a recognized university degree and be eligible for election to the county assembly. Each candidate for governor must nominate a qualified person as his/her running mate to be deputy governor in the event he/she wins the governor election. A deputy governor running mate must meet the same qualifications as a governor.

Roles & Responsibilities

A county governor has general roles and responsibilities, which include:
     ·         acting as the head of the county executive;
     ·         being in charge of all county services;
     ·         appointing the county executive committee with the approval of county assembly; and
     ·         appointing town committees and municipal boards for towns and municipalities within the county area.

See Clause 30 (1) of The County Government Act, 2012, for additional functions and responsibilities of a county governor.

Elections

A county governor and deputy governor may only serve a maximum of two five-year terms. Registered voters in each of the 47 counties directly elect their governor. A deputy governor wins election if their running mate for governor wins the election. A plurality formula decides the winner of a county governor election, meaning that the candidate with most votes wins the election. The Elections Act, 2011 and electoral regulations developed by IEBC outline specific processes for county governor elections.

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