Surprisingly, our Constitution does not expressly recognise the right to form and join political parties. Section 80, which secures the freedom of assembly and association, expressly recognises the right to form or belong to trade unions, but does not mention political parties. Section 79 on freedom of expression, makes no mention of political opinions. Section 78, on freedom of conscience, only mentions religious freedoms.
The Political Parties Bill 2006, published by the Minister of Justice and Constitutional Affairs on December 1, 2006, is therefore a ground breaker on matters relating to political parties. Looking back into the history of political activities in Kenya, culminating into the recent circus surrounding Ford Kenya and Kanu, this Bill is clearly 43 years too late. The history of Kenya would most obviously be different had this Bill been promulgated in 1963.
The Bill begins by establishing the office of the Registrar of Political Parties under the Electoral Commission of Kenya. Currently, all political parties are registered as societies and regulated by the Registrar of Societies.This arrangement puts political parties on the same footing with any other resident’s association or welfare organisation. On the other hand, co-operative societies have been enjoying special recognition by law with an Act of Parliament regulating their affairs and a Registrar established specifically for co-operation societies.
In recognition of the dangers that politics can bring to a multi-ethnic society like ours, the Bill outlaws the registration of any political party that is founded on ethnic, tribal, racial, gender, regional, religious or linguistic basis. It also outlaws the use of any words, slogans, emblems or symbols which may arouse divisions along such lines. The Christians who are planning to register their political party along religious lines, and the Muslims who still hope that one day the Islamic Party of Kenya (IPK) will be registered, must now start thinking in a new direction.
Another mischief addressed by the Act is the use of names and abbreviations that are already in use by another party. Ford party became Ford-People, Ford-Asili and Ford-Kenya. Narc has already given birth to Narc-Kenya and ODM to ODM-Kenya. Upon the coming into effect of this Act, all these parties shall be liable to be deregistered by the Registrar of Political Parties. It will be interesting to see how Parliament, which is full of all the appendages of other political parties, will react to this provision.
For patrons and officials of political parties, the Bill has good news in the form of removal of personal liability. Under the new Bill, each political party shall be a body corporate with a common seal which may be sued in its corporate name. Patrons and officials will no longer assume personal liability for the debts that are incurred by political parties.
And bad news for those who like to intimidate others politically. It shall become an offence for anyone to suppress or attempt to suppress any lawful political activity of another person. The offence is punishable by a fine of Sh15,000 or imprisonment for a term not exceeding 2 years or both. Hecklers and other “Jeshi la Mzee” types may finally be contended with.
The Bill may also open a new era in the relationship between political parties and the State. Not only will every political party be entitled to funding from the State, it will also be entitled to the protection and assistance of security agencies for purpose of facilitating peaceful and orderly meetings. All parties will also be entitled to equitable access to State owned media to present their programmes to the public.
All these good provisions may, however, be undermined by some fundamental flaws in the Bill. For starters, the Bill itself interferes with the political freedom it seeks to protect. In Section 18, it provides that the Registrar of Political Parties may cancel the registration of a political party if the party has not, for each of the two previous general elections, secured at least five per cent of the National vote. A party’s registration may also be cancelled if it has not participated in elections for a period of six years.
But political parties don’t have to exist merely to win elections. They are also vehicles for sharing political ideas, some of which may take decades to be fashionable. For instance, none of the parties pursuing majimboism in Kenya have yet to win an election but that does not mean in another twenty years the idea may not be fashionable. To de-register parties on the basis of failure to win elections is to stifle political debate and eventually cocoon everyone into a few political schools of thought.
THE ACCOUNTS OF EVERY POLITICAL PARTY SHALL BE AUDITED BY THE AUDITOR-GENERAL
Under Section 27, the accounts of every political party shall be audited by the Auditor-General annually and then forwarded to Parliament and the Registrar. Political parties being voluntary organisations, this subjection to State scrutiny may appear like an interference with the freedom of the members. It also exposes political parties to espionage by the State, enabling government to collect information on the strategies and programmes being pursued by political parties. It may have been a better provision to provide for scrutiny of how funds provided by the State have been used. I doubt whether the State has a legitimate interest in auditing how parties have used funds donated to them by private sponsors. This applies also to the restriction of donations from a single person to the sum of Sh1,000,000. Why would the law want to interfere with what people want to do with their money so long as the objectives are lawful?
In any event, the political reality is that this is a provision that will be honoured more in breach than in adherence. Elections in Kenya cost billions of shillings and that is not about to change. Who honestly expects that political parties sponsoring candidates for national elections will pick no more than Sh1,000,000 from sponsors offering tens of millions of shillings? Why should we deceive ourselves with a legal provision that will never be followed?
The Bill also has a glaring omission regarding delegates in party electoral processes. While the list of members must be displayed at the office, there is no provision of displaying lists of delegates where the party had adopted a delegate system of elections. In Kenya, lists of delegates are manipulated endlessly to favour certain factions of the party. The war between Mr Uhuru Kenyatta and Mr Nicholas Biwott has had a lot to do with who were the real delegates. This is one of the issues that must be attended to if the law is to streamline the operations of political parties in Kenya.
