Away from the details of the just-completed legislative action by the Senate and the National Assembly on the Elections Amendment Bill 2024, specifically on the livestreaming of results during general elections in Kenya, the key question should be whether the supply side (the Government and the IEBC) has the capacity, infrastructure and technical competencies to proactively provide Kenyans with timely and adequate information.
The demand side of the access-to-information equation, including the media, civil society and partners, has been adequately trained, sensitised, equipped and retooled on the processes involved, including judicial procedures for accessing information.
However, the provision of information by public agencies remains problematic. The level of investment, sophistication and processes in public agencies will continue to frustrate the right to access information.
Even with Article 35 of the Constitution and several provisions placing responsibilities on the IEBC and other public agencies to provide Kenyans with information on integrity, including those under the IEBC Act, Access to Information Act 2016, Political Parties Act and Elections Act, among others, the arrangements appear inadequate.
What lessons were learnt from the livestreaming of the 2022 General Election and subsequent by-elections that could be implemented to address the fault lines in livestreaming election results? What lessons can be applied to related information and the national psyche to ensure this requirement works for the benefit of Kenyans?
What arrangements must be put in place between the IEBC, media, observers, political parties, CSOs and others to ensure Kenyans access timely, correct and adequate information on elections and to ensure the process is credible, reliable and acceptable? Mismanaged information is more dangerous to the nation than credible information, especially at a time of technology-assisted content manipulation and misinformation.
The law is clear, but implementation structures and guidelines are needed to, for example, guide the sequencing, order and display of election results. The haphazard display of results caused some anxiety last time. Given that results were displayed in no particular order, they kept varying because each person or media outlet was displaying results from different regions. This is something editors, observers and the IEBC can agree on.
The current level of investment in ICT infrastructure at most public agencies might not be enough to meet the immediate demand for information, including during elections. We have already seen the vulnerability of ICT systems through weaknesses in public portals and deliberate attacks on websites. What is being done to help protect these systems, and might the IEBC portal be targeted on election day?
Here we are once again. There are unending attempts to clean up election campaigns by dealing with voter bribery, money laundering through elections and creating a level playing field for aspirants in general elections. This is a very desirable and timely move that requires the support of all and sundry.
The huge expenses incurred in campaign activities have made elections in Kenya a matter of life and death. Bankruptcy, mental stress, financial and family turmoil, and ostracisation are often the next steps for election losers, while winners turn the national and county assemblies into business chambers to recover the money spent on elections. This excludes expenditure incurred if the process takes a legal route through an election petition.
To ensure accountability in elections, the management of political parties and campaigns for political positions in Kenya, the IEBC has published draft guidelines to cap campaign spending by candidates. This is a second attempt, following the initial push in 2022, when the proposals were rejected by MPs. Whether these guidelines, if passed, will help increase transparency and reduce the cost of elective politics in the country, rather than join other laws gathering dust on the shelves, remains debatable. Their impact will depend on implementation.
The regulations under the Election Campaign Financing Act 2013 allow for regulated contributions to parties and candidates, set at Sh44 billion for presidential candidates and Sh17 billion for political parties this time. They also require the formation of campaign finance committees and accounting for funds received during electoral activities.
For governors, senators and women representatives, the maximums, if the guidelines are accepted, will vary from Sh12.3 million to Sh123 million, determined by population and geographical coverage, while MCA candidates will be allowed between Sh2.5 million and Sh20 million. Hopefully, this time, the guidelines will see the light of day and be implemented.
The disclosure of information on sources of funds, their use, member involvement in party management affairs and party accountability for the performance of elected and nominated members must be addressed. The seemingly small issue of managing party primaries within the stipulated time and meeting minimum acceptable standards, including respecting democratic processes, is also important.
Nearly all political parties get their candidates through goons and criminal gangs, corruption, highly manipulated candidate-selection processes and a lack of respect for their own constitutions. In extreme cases, party candidates are selected through judicial processes.
The electoral management body might also be required to seriously assist political parties in managing their primaries ahead of the 2027 General Election. As seen in many failed attempts to conduct party elections, they are incapable of providing democratic space for their membership. They lack transparency in choosing candidates.
The IEBC must be interested in holding office-bearers involved in election offences to account, or seeing them prosecuted, including for interfering with nomination lists and failing to respect the two-gender rule. In addition, past experiences have shown that many political parties rarely keep or disclose basic information such as membership registers, contributions or the use of funds. Many parties have poor nomination processes and often allow party “owners” or founders to exert undue influence over electoral processes.
The rampant use and misuse of public resources, including the involvement of public officers in electoral processes, must be revisited. Given the current political extremism in the country, it will be suicidal to allow public officers to be directly involved in electoral processes.
Electoral campaigns are not official government business; hence, there can never be any justification whatsoever for using public resources to conduct what is essentially unofficial and private business. There are already guidelines requiring public officers interested in participating in elective politics to vacate office six months before the campaign period commences, as well as sections of the Public Officer Ethics Act prohibiting public officers from participating in partisan politics. These appear to be paper requirements, with seemingly no consequences for violations.
An earlier study released in 2022 by Prof. Karuti Kanyinga and Tom Mboya on behalf of South Consulting Africa Limited, entitled “The cost of politics in Kenya”, established that in the 2017 General Election, senators spent Sh49 million, women representatives Sh32.2 million, Members of Parliament Sh21.2 million and Members of County Assembly Sh4.2 million to win their elections. Those who lost spent Sh20.3 million, Sh13.4 million, Sh14.9 million and Sh2.1 million, respectively. That tells you that money largely determines our elections.
The study established that the Senate seat was the most expensive to contest, costing an average of Sh35.5 million in 2017. Candidates for women representative seats followed, with average expenditure of Sh22.8 million.
Members of Parliament averaged Sh18.2 million, while the Member of County Assembly seat was the least expensive, at Sh3.1 million. These costs were predominantly raised from individuals’ personal savings or with support from friends and family. Less than 20 per cent of survey respondents received financial support directly from their political parties.
The more a candidate spends, the greater their chance of electoral victory. Women representative candidates who won their races spent almost three times as much as those who were unsuccessful. In addition to significant expenditure, the support of a dominant party enhances candidates’ chances significantly.
Implementation of the Elections Campaign Financing Act requires greater accountability and focus to ensure political parties develop policies, strategies and ideologies that are clearly discernible and distinct, helping citizens make decisions that shape their lives.
Proactive information disclosure by parties and, where this does not happen, media exposés on party activities, manifestos, nominations, complaints-handling procedures, gender sensitivity and related issues will help citizens participate in elections.
