CONSOLIDATED CONSTITUTIONAL PETITIONS NO. E540 & E546 OF 2021
-BETWEEN-
1. KATIBA INSTITUTE
2. AFRICA CENTRE FOR OPEN GOVERNANCE (AFRICOG)
3. TRANSPARENCY INTERNATIONAL KENYA
4. PHILIP GICHANA NYAKUNDI……………………………………………………………….PETITIONERS
VERSUS
1. INDEPENDENT ELECTORAL BOUNDARIES COMMISSION
2. NATIONAL ASSEMBLY
3. SPEAKER OF THE NATIONAL ASSEMBLY
4. ATTORNEY GENERAL………………………………………………………………………..RESPONDENTS
AND
1. THE LAW SOCIETY OF KENYA
2. THE COMMUNITY ADVOCACY AND AWARENESS TRUST………………..INTERESTED PARTIES
JUDGMENT
Introduction:
[1] Since the promulgation of the Constitution of Kenya, 2010 and the subsequent enactment of various legislations relating to elections and referenda, the Election Campaign Financing Act No. 42 of 2013 (hereinafter referred to as ‘the ECF Act’) is yet to see any meaningful implementation.
[2] The two Petitions in this matter, Petition No. E540 of 2021 Katiba Institute & Another vs. Independent Electoral and Boundaries Commission & Others and Petition No. E546 of 2021 Transparency International-Kenya vs. The Speaker National Assembly & Others are an attempt to by-pass the various hurdles which have impeded the realization of the ECF Act.
[3] Through an order of this Court of 24th January, 2022 Petition No. E540 of 2021 and Petition No. E546 of 2021 were consolidated. I will henceforth refer to them jointly as ‘the consolidated Petitions’.
[4] The consolidated Petitions are opposed.
The 1st & 2nd Petitioners’ case:
[5] The 1st and 2nd Petitioners’ Petition is dated 17th December, 2021 and is supported by the Affidavit of Christine Nkonge deposed to on an even date.
[6] Contemporaneously filed with the Petition was an application by way of a Notice of Motion under a certificate of urgency. Through the application, the Petitioners sought interim conservatory orders suspending the resolution of The National Assembly annulling the Gazette Notice setting limits for spending and contributions for 9th August 2022 General Elections pending hearing and determination of the application and the main Petition.
[7] This Court directed that the application be subsumed in the Petition and be heard together.
[8] In the main, the 1st and 2nd Petitioners pleaded that the power donated to Independent Electoral and Boundaries Commission (hereinafter referred to as ‘the 1st Respondent’ or ‘the IEBC’ or ‘the Commission’) to make regulations under section 29(1) is unconstitutional to the extent that it requires mandatory approval of the National Assembly, the 2nd Respondent herein.
[9] As a result of the foregoing unconstitutionality, the 1st and 2nd Petitioners impugned the reasonableness and lawfulness of the National Assembly’s failure to approve the Regulations developed by the Commission in the year 2016 as well the ones developed in the year 2020.
[10] They pleaded that the requirement under section 29(1) of the ECF Act resulted in absence of rules regulating election campaign financing contrary to Sections 5 and 18 of the ECF Act which obligates the Commission to make rules to regulate election campaign financing and the limits thereon not less than twelve months to a general election.
[11] It was further their case that Section 29(1) of the ECF Act is inconsistent with Article 88(4) of the Constitution which bestows the Commission the responsibility to regulate of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election.
[12] The Petitioners contended that Section 19 of the ECF Act entitles the Commission to publish in the Gazette Notice the nature of authorised items or activities including the cost of venue where campaign activities may be undertaken, publicity material for campaigns, advertising for the campaigns, campaign personnel, transportation in respect of campaign activities and any other justifiable expenses for which campaign expenses may be incurred.
[13] In reference to the Final Report of the Constitution of Kenya Review Commission of 2005 that prescribed capping of expenditure of electoral campaigns, the 1st and 2nd Petitioners posited that the election campaign finance regulation is justified by the need to limit overspending and “crowding out” rival candidates who are modest spenders. They claimed that it also encourages greater participation in the electoral process towards the legitimacy of its outcome.
[14] They further pleaded their case based on the findings of Independent Review Commission (IREC) (Kriegler Commission) to the effect that the absence of legislation or rules to regulate collection and expenditure of campaign funds rendered the then ECK toothless regarding the regulation of campaign finance, and politicians had the leeway to apply the law of the jungle in respect of finances.
[15] The Petitioners posited that the foregoing was ultimately rectified and codified in Article 88(4)(i) of the 2010 Constitution.
[16] In demonstrating unconstitutionality of section 29(1) of the ECF Act, the Petitioners claimed that IEBC has twice tried in vain to bring before the National Assembly regulations on campaign financing for approval.
[17] It pleaded that through The Draft Election Campaign Financing Regulations, 2016, the Commission published and submitted Regulations to the National Assembly for approval ahead of the 2017 general election but they were rejected and revoked, despite being in force by operation of the of law under section 15(2) of the Statutory Instruments Act.
[18] It was their case that the National Assembly later on 16th January 2017 inserted Section 1A in the ECF Act suspending the entire Act until immediately after the 2017 general elections resulting in lack of rules on election campaign financing and expenditure limits for the 2017 elections contrary to Article 84 of the Constitution.
[19] The Petitioners further pleaded that on 5th August, 2021 the Commission submitted the Election Campaign Financing Regulations 2020 to Parliament for approval for the general election scheduled for the 9th August, 2022.
[20] Subsequently, they posited that on 9th August, 2021 the Commission, through Gazette Notice 8024 of 2021 published Contributions and Spending Limits for Political Parties and Candidates for the 9th August, 2022 General Election.
[21] It was their case that upon being presented to Parliament, the Committee on Delegated Legislation tabled a Report recommending the National Assembly to annul the Gazette Notice and reject the publication of the Draft Election Campaign Financing Regulations, which it did in a motion voted to on 28th September, 2021.
[22] The Petitioners pleaded that the National Assembly’s resolution annulling and rejecting the Gazette Notice was communicated to the Commission.