3. The Role Of Political Parties

VOTE

The State is expected to give full effect to the two-thirds gender rule principle through legislative and other measures, including affirmative action, progress and policies that are designed to redress any disadvantage suffered by individuals or groups because of past discrimination (Article 27 (6) (8) of CoK 2010). The CoK provides for how the gender principle is to be realized in the National Assembly and the Senate (Articles 97 and 98 and at the local level – the County Assemblies (Article 177 of the CoK). The general principles for the electoral system include the realization of … not more than two-thirds gender rule (Article 81(b) of CoK).

Article 54(2) of CoK 2010 obligates the State to ensure that at least 5 per cent of PWDs are included in elective and appointive bodies. The PWDs need to be empowered to participate in politics, especially women.

Further, Article 100 of CoK anticipates that parliament will enact legislation to promote the representation of marginalized groups, including women, persons with disabilities, youth, ethnic minorities and marginalized communities. This law is not yet enacted. Thus making the representation of the mentioned categories uncoordinated. The CoK, Article 38 states that every citizen has the right to be involved in political matters. The persons with disabilities Act 2003 in Section 29 specifies that people with disabilities have the right to vote and may be assisted by a personal assistant whose duty is to follow their instructions in voting. On the contrary, Article 99(e) of the Constitution and the Elections Act restricts persons of unsound mind from voting.

The provisions exclude persons with intellectual disabilities to participate in politics.There are, however, reserved seats for PWDs in National Assembly (97(1) (c), Senate 98 (i) (d) and at the County Assembly (Article 177 (i) (c). PWDs (men, women and youth) have the right to be treated with dignity and respect, among others. They are entitled to use sign language, braille or other appropriate means of communication. The state is expected to ensure the progressive implementation of the principle that at least (5) five per cent of the members of the public in elective and appointive bodies are PWDs S4 (2) of the constitution. The reality is that political parties have continued to exclude PWDs in active politics.

3. PROMOTION OF POLITICAL RIGHTS AND THE KENYA ELECTORAL SYSTEM

The CoK 2010 largely promotes political rights for men and women (See Articles 34, 35, 36 and 38). Expressly, all citizens have the right to: i. Participate in forming political parties; ii. Participate in activities of recruitment of members of political parties; iii. Campaign for a political party; iv. Free, fair and regular elections based on Universal

Suffrage; v. To be registered as a voter without unreasonable restrictions; vi. To vote by secret ballot without restrictions; and vii. Without unreasonable restrictions, to be a candidate for public office within a political party if a member.

Kenya has maintained the First-Past-The-Post (FPTP) System, sometimes called the single-member plurality voting or majority electoral system. In this system, inherited from the British, the voters cast their votes for a candidate of their choice and the candidate who receives the most votes is declared the winner. The CoK 2010 introduced proportional representation (PR) alongside the FPTP for the special seats, i.e. nomination in Parliament (National Assembly and Senate) and in the County Assemblies.

In Kenya, FPTP is used in all single-member constituencies, i.e. 290 constituencies, 47 counties and 1,450 county wards. IEBC uses the PR to determine special seats allocated to political parties proportional to the total number of seats won by candidates of the political party at the general election (Articles 90, (1) (2) and (3) of CoK). The specifications on the number of the seats are provided for in Article 97(1) (c) – National Assembly, Article 98 (b) (c) (d) – the Senate and Article 177 (b) and (c) – Members of County Assembly (MCA). The FPTP system allows voters to choose between individuals rather than parties, thereby giving a chance to a popular candidate to win. The system is also simple to use. However, the FPTP system has not been known anywhere in the world to promote and increase the number of women in Parliament. Its implementation normally excludes small parties and women specifically, who opt to run under small parties. Bigger parties normally attract men who are preferred candidates within communities and are assumed to have higher potential to win the party than women candidates.

The key informants, mainly women, interviewed for the assessment conducted for the production of this brief, had many misgivings about the FPTP. Respondents referred to social and cultural barriers as a hindrance to WPP. Due to male-dominated political party structures, the preferred candidates are usually male instead of women. Political parties fear losing their strongholds to women if contesting against strong men. A majority of former women MPs proposed that Kenya adopt the PR system fully, like in the case of Rwanda or South Africa.

There exist legal barriers as well. The study revealed that the introduction of constitutional guarantees on special seats for women, PWDs and the youth was progressive and aimed to support an increase of the special groups into political leadership. However, it has, on the other hand, compromised women’s chances to get party tickets to vie in political party’s strongholds. Parties have used the trade-off system to circumvent the legal provisions and promised women nominations (special seats as per Article 90 of CoK 2010) and urge women to step down for men in the constituency, county and/or ward-based seats.

4. THE ELECTORAL PROCESS IN KENYA

The full cycle of the electoral process in Kenya is guided by the CoK 2010. It stems from the legislation and policy framework on voter registration, candidates presenting themselves to an election, eligibility to be in a political party or to be an independent candidate, voting and determining electoral disputes.

This policy brief concisely discusses each law, its merits and demerits in enhancing WPP. It also outlines the legal barriers that key informants pointed out as hindrance to women enjoying their political rights and provides recommendations towards strengthening WPP using the legal framework.

The CoK 2010 calls on the electoral system to comply with the not more than two-thirds gender rule in elective public bodies and also fair representation of PWDs (Article 81(b) (c) and (e). Further, every citizen is free to make political choices that include:

i. to form or participate in a political party; ii. to participate in the activities of, or recruit members for a political party; iii. to campaign for a political party or cause; and iv. a right to free, fair and regular elections based on Universal Suffrage.

Currently, the … not more than two-thirds gender rule…. has no enforceable framework for implementation in parliament. The search for the gender equality principle has been a subject of numerous cases filed mainly by CSOs in the High Court Of Kenya. The courts have found that the executive and the legislature have violated the constitutional principles by not providing a legislative framework. This culminated into an advisory, dated 22nd September 2020, by the Chief Justice Emeritus, David Maraga, to His Excellency the President to dissolve Parliament. Despite the constitutional provisions supporting the process, there has been no response to date. It is clear that the legal framework can only achieve the intended results if fully implemented. This culminated into an advisory, dated 22nd September 2020, by the Chief Justice Emeritus, David Maraga, to His Excellency the President to dissolve Parliament. Despite the constitutional provisions supporting the process, there has been no response to date. It is clear that the legal framework can only achieve the intended results if fully implemented.

Kenya has maintained the First-Past-ThePost (FPTP) System, sometimes called the single-member plurality voting or majority electoral system.

Deputy Governor Taita-Taveta County, H.E. Majala Mlaghui addresses the audience at the launch of the WPP Intergenerational Mentorship Programme on 8th March 2021

Photo credit: FAWE RS

Below is a brief review of the election enabling legislation that should promote the enhancement of WPP.

a) The Elections Act 2012 and amended in 2017

The Elections Act 2012 provides for the conduct of elections to the Office of the President, the National Assembly, the Senate, County Governor and County Assembly. It also provides for the conduct of referenda election dispute resolution, among others. During this review, it was notable in engagement with women that the majority were unfamiliar with election timelines as provided within the law.

b) The Independent Electoral and Boundaries Act (IEBC) 2011 The IEBC is the election management body (EMB) in Kenya’s electoral system. It is created under Article 88 of CoK 2010, and its functions and mandates as an independent body are provided for in Chapter 15 of the CoK. The Act provides for the structure and roles of the commission in discharging its constitutional mandate. In discharging its functions, the IEBC is bound by the constitutional gender equality principles. The chairperson and the deputy must be of the opposite gender in its leadership. It was noted that IEBC has not put in place any gender-specific regulations to guide the process undertaken by political parties towards the realisation of the not more than two-thirds gender rule. In the case of Katiba v. IEBC of 2017, the court decision noted that it was the responsibility of IEBC to enforce the requirement to meet the gender parity rule.

c) The Election Offences Act (2016)

Women observed that gender-based violence (GBV) is a great barrier to women during campaigns. It identifies common election offences and prescribes penalties to be meted upon offenders found culpable. The Act provides for the offence of undue influence among other offences, including using threats, threatening to use any force and violence including sexual violence, restraint or material, physical or spiritual injury, and harmful cultural practices (Section 10). While the offence of use of undue influence includes sexual violence, there is a need to amend the law to define the offence of GBV and link it to the Sexual Offences Act, which has stiffer penalties as opposed to the Elections Act. The elections code of conduct, which has been included in the Elections Act, does not include the prevention of GBV as a duty required of the political parties and the candidates. This is a great omission.

d) The Persons with Disabilities Act

The Persons with Disabilities Act of 2003 guarantees PWDs civil rights to vote and provides that polling stations shall be made accessible during elections. In addition, PWDs should be provided with the necessary assistive devices and services to facilitate their voting. This has not been fully embraced by the electoral management body occasioning challenges to PWDs as candidates as well as voters.

Negative myths and stigma about PWDs are common and work to exclude them from leadership, especially political leadership. The challenges PWDs face cumulatively include lack of support system, e.g. those who require braille or assistance to vote, an unfriendly environment that is physically inaccessible and limits the mobility for those physically challenged. CPRD obligates states to remove all barriers that deny PWDs political rights. Despite the legal provisions promoting PWDs and their rights to vote, the political system is still greatly discriminatory towards them.

e) Political Parties Act 2011

The Political Parties Act, 2011 and the 2016 amendments draw their mandate from the CoK 2010 (Article 91). The Constitution stipulates the basic requirements for political parties. Political parties are expected to have a national character and a democratically elected governing body. The party must promote and uphold national will, respect and promote human rights, fundamental freedoms, and gender equality and equity. It also must promote the objects and principles of the Constitution, among others.

The gender parity requirement of political parties is that the party’s governing body must reflect diversity and gender balance and respect the not more than two-thirds gender rule in the party’s governing body. The Act establishes the Independent Office of the Registrar of Political Parties (ORPP), Political Parties Liaison Committee (PPLC) and the Political Parties Fund (PPF). Political parties are also authorized to create coalitions and mergers. For a political party to qualify to benefit from the PPF, it must have attained at least 5 per cent of the total national votes cast in the preceding general elections. Further, not more than two-thirds of its registered office bearers should be of the same gender. The ORPP has simplified all the requirements in a checklist for political parties to comply. However, the ORPP does not readily have the gender analysis of the party’s gender balance and the utilization of the resources for the two parties that received the fund.

The 2016 amendments to the Political Parties Act provide clarity by defining special interest groups to include women, PWDs, youth, ethnic minorities and marginalized groups. The Act amends reference to minorities and marginalized groups to special interest groups whose essence is to recognize women in that category. Political parties are required to disaggregate their membership based on special interest groups. Further, the Act was amended to ensure that…. no more than two-thirds gender principle is met in all party organs, bodies and committees. While the legal framework regulating political parties is clear, it may be important to scrutinise political parties, especially those receiving public funds.

Essentially, 15 per cent of the PPF must go to support gender activities. These funds are intended to enhance the electorate to engage better with the parties. While the ORPP indicated that the two parties receiving the PPF (Jubilee and ODM) have used some of the resources towards activities of the women leagues, the evidence was not available to support this assertion. There is a need to review the eligibility criteria of political parties to facilitate more parties to access the PPF.

f) Policy Framework

To strengthen the legal framework towards elections, IEBC developed numerous regulations in 2017. These include Election (Technology) Regulation, 2017; Election (Voter Registration), Regulations 2017; Elections (General Regulations, 2017); Elections (Voter Education) Regulations, 2017; Elections (Party Primaries and Party Lists) Regulations 2017; Rules and Procedures on Settlement of Disputes, 2012; Elections (Parliamentary and County Election) Petition Rules and the Supreme Court (Presidential Election Petition Rules, 2017). The regulations are facilitative for men and women. However, the IEBC has not put in place any regulations to guide the process by political parties’ nomination of candidate’s that would facilitate the realization of the gender principle. IEBC needs to have clear regulations towards implementing the principle of gender equality and inclusion by political parties.