The electoral agency is seeking to bar losers in party primaries from running for elective seats as independent candidates in the August 9 General Election.
The commission told the National Assembly Justice and Legal Affairs Committee Tuesday that it wants to create a level playing field for all aspirants by having a law that serves all equally.
In its views on the Elections (Amendment) Bill, 2022, the agency has proposed to amend Section 28 by shortening the period by which parties are required to submit a list of members from 120 days to just 90 days.
According to the Independent Electoral and Boundaries Commission (IEBC) timelines, parties should conduct nominations between April 16 and April 22. Independent candidates have until May 2 to submit their papers.
Contest as independents
This means that losers in party primaries will have 10 days to resign as members of a party and contest as independents. The law, however, bars nomination losers from joining a different party.
This is the provision that IEBC seeks to “cure”, so that all aspirants are treated equally. It wants losers in party primaries barred from either joining another outfit or contesting as independent candidates. IEBC Director of Legal Services Chrispine Owiye told MPs that the current provision is skewed.
“The law should treat everyone equally. If a person does not believe in the ideals and ideology of a party, he should not participate in their primaries. We want independent candidates and those nominated by various parties to be the same before the law,” Mr Owiye said.
Committee vice chairperson T.J Kajwang’ (Ruaraka) said the proposal would tame individuals who avoid highly competitive primaries to contest as independent candidates.
Mandera West MP Adan Yussuf said a candidate needs to decide whether he or she wants to contest as an independent or fight it out in party primaries.
Kisumu West MP Olago Aluoch said that, at times, it is the parties that fail to conduct free and fair nominations.
“What do you do if you feel the party is unfair to you?” Mr Aluoch posed.
He also questioned the timing of the proposal, saying, it would limit the rights of an individual to belong to a political party. Mr Owiye dismissed claims that the Bill seeks to curtail the freedom of the media in transmitting live results.
“That is misinformation. All bodies, including the NGOs, must have access to the transmission of results,” he said.
He said there’s nothing confidential about election results and IEBC has no intention of blocking anyone from transmitting them.
The committee will continue taking views from other stakeholders, including the Law Society of Kenya, Council of Governors, Kenya Law Reforms, Kenya National Human Rights Commission and other non-governmental organisations on the Bill before submitting their report when the House resumes its sittings next week.
At the same time, IEBC has until March 28 to submit to political parties the list of Returning Officers (ROs) and their deputies as required by law. The Elections Act regulations compel the commission to submit the names of the 290 constituency returning officers and their deputies to the political parties before they are finally appointed through a notice in the Kenya Gazette.
The 2022 Election Operational Plan indicates that IEBC was to appoint the officers by March 14 and share the particulars of the officers with the political parties between March 14 and March 28. The returning officers will then sign the election code of conduct between March 28 and April 3.
Although the plan talks of appointment of officers by March 14, Ms Purity Njeru, the communications manager, told the Nation the commission will redeploy its permanent staff for the mission.
Officers well trained
She said the agency has a huge catchment of permanent staff who include County Election Managers (CEMs), Constituency Elections Coordinators (CECs) and Constituency Administrative Assistants (CAAs) who will be deployed as county returning officers, constituency returning officers and deputy constituency returning officers, respectively.
“These officers are well trained and have vast experience in election management,” said Ms Njeru, adding that the officers will be assisted by temporary poll officials who will be recruited and adequately trained between March and June, in line with the election operation plan. On whether the Commission had shared the details with their primary clients, political parties, Ms Njeru said the information will be shared out when it is ready.
The sharing of the information with political parties is particularly critical because the ROs and DROs cannot be gazetted without the input of political parties.
High Court judge Justice George Odunga nearly derailed the 2017 repeat presidential election after he ruled that the appointment of ROs and their deputies for the purpose of that election violated the Elections Act. In a judgement delivered on the eve of the poll, and which nearly caused a constitutional crisis, Justice Odunga accused IEBC of failing to submit the list of persons proposed for appointment at least 14 days before the proposed day of appointment to enable candidates and political parties make any representation. IEBC had appointed 290 Constituency Returning Officers and their deputies.
Narc Kenya Executive director Daniel Taabu said the party is yet to receive such communication from the commission but indicated that it is too early in the day and was confident the agency will share the information as it has been very effective in sharing such details in the past.
Orange Democratic Movement Secretary-General Edwin Sifuna said he had not seen the list.
“IEBC could have shared the list but I have not seen it because I have not been in the office,” he said. The officers are critical in management of elections as presidential election results declared at the constituency level by returning officers are final and not be altered at the national tallying centre.
Activists Maina Kiai, Khelef Khalifa and Tirop Kitur, had sued IEBC and the Attorney-General in a suit that challenged the law that gave the electoral body the mandate to verify presidential election results announced by returning officers at the constituency level. The High Court in 2017 agreed with the trio and declared that the law that required presidential election results changed at the national tallying centre was null and void.
The court of appeal upheld the decision. This means that the section of the Elections Act that gave IEBC powers to vary presidential election results submitted by returning officers at the constituency level was unconstitutional.
The judges have consequently ruled that a returning officer at the constituency level has the mandate to declare final presidential election results and that any other person seeking to have what will be announced altered should do that through an election petition filed in court.