One critical law Parliament passed was the Independent Electoral and Boundaries Commission Act, which created the Independent Electoral and Boundaries Commission to supervise elections and referenda at county and national government levels.
The nine-member Commission chaired by Mr Ahmed Issack Hassan is responsible for conducting or supervising referenda and elections of any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for:-
- Continuous registration of voters;
- Regular revision of the voters roll;
- Delimitation of constituencies and wards;
- Regulation of the process by which parties nominate candidates for elections;
- Settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;
- Registration of candidates for election;
- Voter education;
- Organising monitoring, observation and evaluation of elections;
- Regulation of the sums of money that may be spent by or on behalf of a candidate or party in respect of any election;
- Development of a code of conduct for candidates and parties contesting elections; and
- Monitoring of compliance with the legislation required by Article 82 (1) (b) relating to nomination of candidates by parties.
Since inception in 2009 (then known as the Interim Independent Electoral Commission, IIEC) to 2011 when its name changed to the Independent Electoral and Boundaries Commission, it has established a secretariat, set up regional and constituency coordinating offices and implemented a number of electoral reforms.
Apart from conducting the referendum in August 2010, IEBC has successfully conducted parliamentary and civic by-elections in Kitutu Masaba, South Mugirango, Shinyalu, Ikolomani, Starehe, Kamukunji and Kirinyaga Central, Wajir South, Juja, Makadara and Matuga constituencies.
Elections Act in Kenya
The law came into effect on December 2, 2011 and repealed the National Assembly and Presidential Elections Act and the Election Offences Act.
It provides for the conduct of elections to the office of the President, the National Assembly, the Senate, county governor and county assembly; the conduct of referenda and election dispute resolution.
It, inter alia, gives IEBC powers to: –
- order the arrest and prosecution of Cabinet Ministers, their assistants and other government officials who use official vehicles for their campaigns and impound such vehicles/ resources; and
- order the arrest , prosecution and or punishment of a person who breaks electoral laws.
The Elections Act also demands that public servants or those who work in state corporations but are keen on running for an elective post must declare their wealth or face a maximum fine of Sh2 million or six years in jail or both. And he or she must resign at least seven months to the election date or risk being disqualified. A similar fate awaits a public officer found guilty of, while still in office, having used their offices and positions to initiate projects to up their chances of getting elected.
Any Kenyan aged 18 and above and residing in the country or abroad will need a national identity card or passport to register as a voter.
The IEBC shall compile the Principal Register of Voters. Any person who registers as a voter more than once risks a ShlO0,000 fine or face a prison term of one year or both.
A voter wishing to transfer registration to another electoral area must notify the IEBC in not less than 90 days to an election.
Names of nominees for every political party must be disclosed to the IEBC at least 45 days before the date of election.
Nomination for election in Kenya
To be nominated to vie for any elective post, one must hold a post-secondary school qualification recognised in Kenya. But to vie for President, deputy president, county governor and deputy, a candidate must have a university degree.
And to be nominated as a presidential candidate, one must be: -
- A Kenyan by birth;
- Nominated by a political party or is an independent candidate;
- Nominated by not fewer than 2,000 voters from 24 of the total 47 counties in the country;
- Qualified to stand for elections as an MP.
A person or a political party that participates directly or indirectly in a public fundraising within eight months to an election or during an election period is disqualified.
The IEBC shall determine, declare and publish results of an election immediately after the close of polling.
A political party participating in an election shall have access to the state owned media services during the campaign period, on equitable allocation of airtime. Every state-owned print or electronic media which publishes any information relating to the electoral process shall be guided by the principle of total impartiality and shall refrain from any discrimination in relation to any candidate.
The Code of Conduct for the practice of journalism prescribed under the Media Act (No.3 of 2007) shall be subscribed to. The Commission may prohibit a media house that contravenes the Code of Conduct prescribed under the Media Act from transmitting information related to an election under this Act.
Right of recall MP’s in Kenya
Voters in a county or constituency may recall their MP before the end of the term of the relevant House of Parliament where such a member is found, after due process of the law, to have:-
a) Violated the provisions of Chapter Six of the Constitution (on Leadership and Integrity);
b) Mismanaged public resources;
(c) Convicted of an election offence.
However, a recall of a member of Parliament shall only be initiated upon a judgement or finding by the High Court confirming the allegations.
A recall shall only be initiated 24 months (by at least 30 per cent of registered voters) after the election of the member of Parliament and not later than 12 months before the next general election.
A recall petition shall not be filed against a Member of Parliament more than once during his or her term. A person who unsuccessfully contested an election is not eligible to initiate a recall petition.
To address electoral chaos, the Act demands that any person who visits violence on others during campaignes, or, after elections, commits an offence, is liable, on conviction, to a fine not exceeding Kshs 1 million or to imprisonment for a term not exceeding five years or to both.
A candidate, or any other person who uses a public officer, or the national security organs to induce or compel any person to support a particular candidate or political party commits an offence and is liable, on conviction, to a fine not exceeding Kshs 10 million or to imprisonment for a term not exceeding six years or to both.
The Elections Act obliges employers to allow their employees ample time to go and vote and not to penalize them for their absence during such period. Any employer who breaches this requirement is liable, upon conviction, to a fine not exceeding Kshs 1 million or a jail term not exceeding six years or both.
Election Petition in Kenya
An election petition, other than a presidential election, shall be filed within 28 days after IEBC has declared the results. A petition may be served personally to a respondent or by advertisement in a newspaper with national circulation.
A person who presents a petition to challenge an election shall deposit: —
(a) Kshs1 million, for a petition against a presidential candidate;
(b) Kshs500,000 for a petition against a Member of Parliament or a county governor; or
(c) Kshs100,000 for a petition against a member of a county assembly.
Access by media
The Elections Act makes it mandatory for political parties, referendum committees, candidates and agents to respect the role of the media during and after elections.
Parties are not to deny media access to public political meetings, marches, demonstrations and rallies. They must also take reasonable steps to ensure that journalists are not subjected to harassment, intimidation, hazard, threat or physical assault by any of their representatives or persons who support the candidate or political party.
Media houses and journalists are barred from publishing or distributing results of exit polls in elections. IEBC is to set up the Electoral Code of Conduct Enforcement Committee to monitor compliance with the rules that govern elections.
Independent Electoral and Boundaries Commission (IEBC) Members
The commission comprises nine members. They are:
- Ahmed Issak Hassan – chairman,
- Yusuf Abdulrahinan Nzibo,
- Mohamed Alawi Hussun,
- Abdullahi M. Sharawe,
- Lilian Bokeeye Mahirie
- Zaja, Thomas Letangule,
- Joyce Muthoni Wangai,
- Albert C. O. Bwire and
- Kule Galma Godana,
These members were appointed by the President via Kenya Gazette Notice No. 14094 of November 8 2011.