Blow to IEBC as politicians now free to spend as they wish on campaigns

UDA campaign rally

Youths follow proceedings at a campaign rally by the United Democratic Alliance, ahead of the March 18 Machakos senator by-election, on January 31, 2021.

Photo credit: File | Nation Media Group

The electoral commission has suffered a setback in its bid to curb runaway financial spending by political parties and individuals seeking elective positions after the High Court declined to reinstate the spending regulations.

In a judgment that has opened doors for unregulated splashing of money by election candidates, the court yesterday refused to quash the decision of the National Assembly to annul the campaign financing limits (Election Campaign Financing Regulations 2020) published by the Independent Electoral and Boundaries Commission (IEBC) last year.

The court also found that Parliament does not have powers to approve or disapprove the spending limits (to be) enacted by the commission (for the next election cycle). The law requires the commission to put in the regulations 12 months before a general election.

The IEBC had developed the revoked regulations in an effort to ensure a level field for all political contestants, as well as tame electoral malpractices such as voter bribery. 

It had capped presidential campaign spending in the next General Election at Sh4.4 billion, while spending limits for governorship, senatorial and woman representative seats had been capped on a county-by-county basis ranging from Sh21.9 million to Sh117.3 million.

But the National Assembly rejected and annulled the regulations in September last year, on grounds that the legal notice is null and void because it was published without Parliament’s approval as required by the Election Campaign Financing Act 2013.

The lawmakers also found that the regulations were enacted without the IEBC involving the public.

The decision triggered petitions in court by civil society groups Katiba Institute, Africa Centre for Open Governance (Africog), Transparency International and Mr Phillip Gichana, challenging the revocation of the campaign financial spending limits.

While ruling on the petitions yesterday, Justice Anthony Mrima said the decision of the National Assembly was valid and constitutional.

"There was no public participation in the enactment of the Election Campaign Financing Regulations, 2016 and 2020. The National Assembly did not contravene the Constitution in annulling and revoking the regulations and the gazette notice," said Justice Mrima.

The judge stated that it was mandatory for IEBC to involve the public through public participation in enacting the regulations.

However, the judge said the resultant limits are not subject to parliamentary approval. He said Parliament could only participate in the enactment through the public engagement forums undertaken by IEBC.

Justice Mrima added that section 29(1) of the Election Campaign Financing Act is unconstitutional for shifting the responsibility to regulate “the amount of money that may be spent by or on behalf of a candidate or party in respect of any election” from the IEBC to the National Assembly. The section required members of the National Assembly to approve rules governing their own election campaign financing. 

"There is no requirement to subject the spending limits to parliamentary approval. However, such limits must be subjected to appropriate public engagement," said the judge.

He also asked the IEBC to proactively and timeously come up with the regulations so that the country has in place the requisite regulations and the necessary spending limits. In doing so, he said IEBC will be promoting Constitutionalism.

However, the Election Campaign Financing Act requires the regulations to be in place one year to the elections.

The annulled rules were developed by the IEBC to enforce Article 88(4)(i) of the Constitution that says the commission is responsible for "the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election".

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