KISII UNIVERSITY

SCHOOL OF LAW

COURSE TITLE: ELECTION LAWS

COURSE CODE: LLBK 42

NAME REG NO.

ALFONCE ODUOR LA11/00028/18

LOVIAN AWUOR LA11/00030/18

ANDREW MANDI LAP11/00001/18

JEFF MORIITI LA11/000 /18

QUESTION:

Analysis of :

1. Provisions of the constitution of Kenya 2010 relating to elections.

2. Constitution of Kenya amendment bill no 143 of 2015

The promulgation of the Constitution of Kenya 2010 has been considered as
milestone towards the realization of the political rights in Kenya. It is viewed as
one of the protracted constitutions in the world because it encompasses
extensive provisions revolving around the achievement of realization of human
rights.

It grants every citizen the right to freely make political choices which includes 1;

 to form , or participate in forming,a political party

 to participate in the activities of ,or recruit members for a political party
 to campaign for a political party or cause.

Right to free,fair and regular elections based on universal suffrage.

Right of every adult citizen to be a registered voter without any unreasonable

restrictions, to vote vide secret ballot system in any election or referendum and
to be a candidate for a public office ,or office within a political party in which
the citizen is a member and if elected to hold office

Chapter Seven of the Constitution provides for Representation of the people.

Part 1- Electoral system and process

Article 81 provides for the general principles for the electoral system to
include;

1. Freedom of citizens to exercise their political rights under Article 38 as

initially discussed,
2. Gender equality; it requires that not more than of the members elected
in public bodies shall be of the same gender,
3. Fair representation of persons with disabilities
4. Universal suffrage based on aspiration for fair representation and
equality of vote.
5. The electoral system be free and fair by way of;
1
Article 38
  Secret ballot
 Free from violence ,intimidation, improper influence or corruption;
this provision stems from the post election violence crisis of 2007-
2008 which was the hallmark of the promulgation of the
Constitution of Kenya,2010.
 Conducted by an independent body in this case the Independent
Electoral Boundaries Commission.
 Transparent ,and administered in an impartial , neutral, efficient,
accurate and accountable manner.

Legislation on elections

The parliament shall enact legislation to provide for-

 the delimitation by the IEBC of electoral units for election of members of

the National assembly and the county assemblies.
 the nomination of candidates- Political Parties Act
 the continuous registration of citizens as voters
 the conduct of elections and referenda and the regulation and efficient
supervision of elections and referenda
 the progressive registration of citizens residing outside Kenya and the
progressive realization of their right to vote.

Legislations governing the conduct of elections and referenda and the

regulation and efficient supervision of elections and referenda shall ensure that
the voting at every election is simple, transparent and takes into account the
special needs of persons with disabilities and other persons or groups with
special needs. With reference to Article 54 (2),the state shall ensure the
progressive implementation of the principle that at least five percent of the
members of the public in elective or appointive bodies are persons with
disabilities.
Qualification for registration as a voter 2

A person qualifies for registration as a voter at elections or referenda if the

person ;

 is an adult of sound mind.

 has not been convicted of an election offence during the proceeding five
years.

A citizen who qualifies for registration as a voter shall be registered at only one
registration center.

The administrative arrangements for the registration and conduct of elections

shall be designed to facilitate and shall not deny any eligible citizen right to
vote or stand for election.

Candidates for election and political parties shall comply with the code of
conduct prescribed by the IEBC3

Independent Candidate

A person qualifies to be an independent Candidate if;

1. if the person is not member of a registered political party and has not
been a member for atleast three months immediately before election.
2. satisfies the requirements of ;
 Article 99(1)(c)(1); which requires the person be supported by
atleast one thousand registered voters in the constituency in the
case of elections to the National assembly,and at least two
thousand registered voters in the county in the case of the Senate.
 Article 193(1)(c)(11); Supported by atleast five hundred voters in
the Ward concerned in the case of the member of county assembly.

2
Article 83

3
Article 84
Voting

The IEBC shall ensure that whatever method is used, the system is simple,
accurate b,verifiable ,secure , accountable and transparent.

The votes are counted , tabulated and the results announced promptly by the
presiding officer at each polling station,

The results from the polling stations are openly and accurately collated and
promptly announced by the returning officer and that appropriate structures
and mechanisms to eliminate electoral malpractice are put in place , including
safekeeping of election materials4

Electoral Disputes.

Petitions other than presidential election shall be filed within twenty eight days
after the declaration of the election results by the IEBC and the service of a
petition may be direct or by advertisement in a newspaper with national
circulation.5

4
Article 86

5
Article 87
 INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION.

It is established under Article 88(1) of the Constitution of Kenya 2010.

Responsibilities of the commission

These are provided for under article 88(4) of the Constitution of Kenya 2010.

They include;

i) Conduct or supervise referenda.

ii) Conduct elections to any elective body or office established by this

Constitution, and any other elections as prescribed by an Act of Parliament.

iii) Continuous registration of citizens as voters.

iv) Regular revision of the voters’ roll.

v) Delimitation of constituencies and wards;

vi) Regulation of the process by which parties nominate candidates for

elections.

vii) Settlement of electoral disputes, including disputes relating to or arising

from nominations but excluding election petitions and disputes subsequent to the
declaration of election results.

viii) Registration of candidates for election.

ix) Voter education.

x) Facilitation of the observation, monitoring and evaluation of elections.

xi) Regulation of the amount of money that may be spent by or on behalf of a

candidate or party in respect of any election.

xii) Development of a code of conduct for candidates and parties contesting

elections.
 xiii) Monitoring of compliance with the legislation required by Article 82 (1) (b)
relating to nomination of candidates by parties.

Delimitation of electoral units. (Article 89).

Definitions

1. Boundary delimitation (or simply delimitation) is the drawing of boundaries,

particularly of electoral precincts, states, counties or other municipalities. In the
context of elections, it can be called redistribution and is used to prevent
unbalance of population across constituencies or wards.

2. Population Quota is defined under Article 89(12) as the number obtained by

dividing the number of inhabitants of Kenya by the number of constituencies or
wards, as applicable, into which Kenya is divided under this Article.

There are 290 constituencies in Kenya as provided for under Article 97(1) of the
Constitution of Kenya 2010.This means that for purposes of election there should
be 290 elected members of the national assembly.

IEBC is mandated with the duty of reviewing the names and boundaries of
constituencies at intervals of not less than eight years, and not more than twelve
years, and any review shall be completed at least twelve months before a general
election of members of Parliament.

The names and boundaries of wards are to be reviewed periodically.

Article 89(4) provides that if a general election is to be held within 12 months

after the completion of a review by the commission, the new boundaries shall not
take effect for purposes of that election.

Article 89(5),(6) provides that the boundaries of each constituency shall be such
that the number of inhabitants in the constituency is, as nearly as possible, equal
to the population quota, but the number of inhabitants of a constituency may be
greater or lesser than the population quota by a margin of not more than;

(a) forty percent for cities and sparsely populated areas; and

(b) thirty per cent for the other areas.

This ensures that the following are accounted for:

(a) Geographical features and urban centres;

(b) Community of interest, historical, economic and cultural ties; and

(c) Means of communication.

Reviewing of constituency and Ward Boundaries

First the commission consults all the interested parties after which it begins to
work progressively towards ensuring that the number of inhabitants in each
constituency and ward is, as nearly as possible, equal to the population quota.
The commission shall then alter the names and boundaries of constituencies,
and the number, names and boundaries of wards if necessary.
The names and details of the boundaries of constituencies and wards
determined by the Commission shall be published in the Gazette, and shall come
into effect on the dissolution of Parliament first following their publication.

A person may apply to the High Court for review of a decision of the
Commission made in regard to the delimitation of a particular boundary.

An application for the review of a decision made under this Article shall be filed
within thirty days of the publication of the decision in the Gazette and shall be
heard and determined within three months of the date on which it is filed.
 Allocation of party lists (Article 90)

Every political party that takes part in the general election must submit to the
commission the following party lists;

i) National Assembly party list

ii) Senate (Youth) party list

iii) Senate (Women) party list.

iv) Senate (person with disability) party list.

v)County Assembly (Marginalized groups )party list.

vi)County Assembly (Gender)party list.

The IEBC is responsible for the conduct and supervision of elections for the
seats provided for under Articles 97(1) (c) and 98 (1) (b), (c) and (d), and for the
members of county assemblies under 177 (1) (b) and (c), and shall be on the
basis of proportional representation by use of party lists.
The commission also ensures that;

(a) each political party participating in a general election nominates and

submits a list of all the persons who would stand elected if the party were to be
entitled to all the seats provided for under clause (1), within the time
prescribed by national legislation;

(b) except in the case of the seats provided for under Article 98 (1) (b), each
party list comprises the appropriate number of qualified candidates and
alternates between male and female candidates in the priority in which they
are listed; and

(c) except in the case of county assembly seats, each party list reflects the
regional and ethnic diversity of the people of Kenya.
POLITICAL PARTIES

Under article 91(1), every political party shall;

a) Have a national character as prescribed by an Act of parliament

b) Have a democratically elected governing body
c) Promote and uphold national unity
d) Abide by the democratic principles of good governance, promote and
practice democracy through regular, fair and free elections within the
party.
e) Respect the right of all persons to participate in the political process,
including minorities and marginalized groups
f) Respect and promote human rights and fundamental freedoms, and
gender equality and equity
g) Promote the objects and principles of this constitution and the rule of
law
h) Subscribe to and observe the code of conduct for political parties

(2) A political party shall not;

a) Be founded on a religious, linguistic, racial, ethnic, gender or regional

basis or seek to engage in advocacy of hatred on any such basis
b) Engage in or encourage violence by, or intimidation of, its members,
supporters , opponents or any other person
c) Establish or maintain a paramilitary force, militia or similar organisation
d) Engage in bribery in bribery or other forms of corruption
e) Except as is provided under this chapter or by an Act of parliament,
accept or use public resources to promote its interests or its candidates
in elections

LEGISLATIONS ON POLITICAL PARTIES

Under article 92, parliament shall enact legislation to provide for;

 a) The reasonable and equitable allocation of airtime, by state- owned and
other mentioned categories of broadcasting media, to political parties
either generally or during election campaigns
b) The regulation of freedom to broadcast in order to ensure fair election
campaigning
c) The regulation of political parties
d) The roles and functions of political parties
e) The registration and supervision of political parties
f) The establishment and management of political parties fund
g) The accounts and audit of political parties
h) Restrictions on the use of public resources to promote the interests of
political parties
i) Any other matters necessary for the management of political parties

Analysis of Constitutional Amendment Bill No 143 of 2015

Constitutional Amendment Bill No 143 of 2015 was initiated by Hon.

Judith Achieng' Shijenyi to the Senate to amend the Constitution so as to give
effect to the two- thirds gender principle. This was to be effected through
creation of special seats that will ensure that the principle is achieved in
Parliament and that State will take legislative and policy measures for this
achievement.

The Bill seeked to make amendments to Articles 81, 90, 97 and 98 of the
Constitution Of Kenya 2010.

The Bill proposed to amend Article 81 of the Constitution to require the state to
take legislative, policy and other measures to ensure that not more than two-
thirds of the members of an elective body are of the same gender.
This is to be done by proposed amendment by renumbering the existing
provision on General principles for the electoral system as clause (1) and
inserting a new clause (2) on the mandate of state to ensure that standards for
achievement are provided by the state

The Bill proposed to amend Article 90( 1) by inserting a new clause 1(A) which
would require that persons elected for a party list seat i.e 12 members
nominated to represent special interests in National assembly in 97 1(c) , 16
women members nominated in the Senate, 2 members representing the youth
one being a man and a woman and 2 members representing PWDs one being
a man and a woman in Article 98 1 (b) (c) (d) and number of special seats to
ensure two-thirds at County Assembly whether in the Parliament or County
Assembly shall be eligible for re election for party list seat

The Bill seeked to amend Article 97 of the Constitution on National assembly

composition by introducing a new paragraph in clause (1) to ensure that the
composition complies with gender requirement. The new paragraph would
require election through party list seats of the number of special seat members
necessary to ensure that not more than two-thirds of the members are of the
same gender

A comparative study after the Bill was passed in the composition in Article 97
1(c) after the 2017 general elections showed that out of the 12 special interests
seats ;

There were 6 wowen and 6 men sharing the 12 available seats

1. Wilson sossion - ODM ( Workers)

2. Sammy Seroney - WIPER ( Workers)
3. Prof Adhiambo Oduol- ODM ( marginalized women)
4. Nasri sahal - marginalized group
5. Maina Kamanda- special interests
6. Halima Yusuf- Special interests
 7. Godfrey Osotsi - workers
8. Gideon Keter - youths
9. David Ole Sankok - PWDs
10. Cecily Mutitu - special interests
11. Dennitah Ghatti PWDs
12. Jennifer shamala - special interests

This composition is a realization of two third gender requirement in the Bill.

The Bill seeked to amend Article 98 (1) on Senate composition by inserting a

new paragraph to ensure that gender requirement is achieved.

The Bill proposed to amend Article 97 and 98 of the Constitution by inserting a

new Article 97 1 (C) and 98 1 ( B) to provide for a sunset clause so that
affirmative action provision on gender representation would be reviewed 20
years form the date of next general elections

A sunset clause is a provision providing for an automatic repeal of the

entire or sections of the Law once the sunset date is reached.