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NCCK General Secretary Rev. Canon Peter Karanja presents the NCCK Memorundum on Electoral Reforms to Senator Samson Cherargei, Chair of the Senate's Justice Legal Administration Committee at the County Hall, Nairobi. Canon Karanja was accompanied by a host of church leaders among them Deputy General Secretary Dr. Nelson Makanda.

MEMORANDUM ON THE ELECTION LAWS AMENDMENT BILL, 2018 AND THE ELECTION LAWS (AMENDMENT) (NO.2), 2018

To: Speaker of the Senate
Clerk of the Senate
Sen. Chair, Committee on Legal Affairs, Justice and Human Rights
C.c. Sen. Vice Chair,

1.0. PREAMBLE
The National Council of Churches of Kenya (NCCK) remains a committed Stakeholder in the electoral governance and peace building national pursuit in our country. In the recent past and particularly since 2016 we have with the rest of the religious and faiths communities helped the country to dialogue on various aspects relating to the management of elections and broad governance processes affecting peace and security.

The Church appreciates the government’s and Parliament efforts to provide a better framework for electoral governance and management in Kenya through initiating of various legal, policy and operational reforms.

2.0. THE SCOPE OF ELECTORAL REFORMS
Electoral reforms are broadly at five levels;
a) Constitutional reforms need to be considered to address the constitutional provisions relating to the electoral system, processes and the conduct and management of elections;
b) Legal reforms touching on the various Acts of parliament to make the conduct of elections and the related matters efficacious are needed. Our submission today focus more on this area. Here we hope to go beyond the two Elections Laws Amendment Bills and see how the IEBC Act, the Elections Act, Election Offences Act among others can be refined in the interest of democratic aspirations of our country;
c) Administrative and regulatory reforms ought to be initiated by IEBC in many areas of the electoral processes and systems.
d) Administrative reforms touching other agencies ought to be considered in order to make these agencies effective in helping IEBC deliver credible elections in a peaceful environment.
e) Contextual and culture reforms touching on the citizens and the wider society are needed. A country’s political culture is more important than the Acts of Parliament. Civic education and other processes that help to shape the culture of a society are therefore crucial in the carrying electoral reforms.

3.0. PROPOSALS FOR AMENDMENTS

The first part of our submission relates to the two Bills which now require public participation and input;
Section Elections Act , Elections Offenses Act
IEBC Act Proposed Amendment Our comment on the specific Amendment
Section 2 Elections Act Insertion of “Declaration Form” Accept the Amendment We fully agree that the addition will help bring clarity on what a declaration for is and we support.
Section 37 A Elections Act 2011 Introduction of Section 37A as contained in the Election Laws ( Amendment) Bills (No 2) Accept the Amendment We find this Amendment to be helpful in reflecting the true and equitable balance of political party strength in the relevant house or Assembly.
Section 39 of the Elections Act Insertion of Section 39 (1F A) to (1FG)
As provided for in the Election Laws Amendment Bill Accept the Amendment This amendment will generally give power and advantage to the IEBC to ensure that the documents are signed and this will make the process smoother at the polling Stations.
Section 6 of the Elections Offences Act Insertion of paragraph (r) immediately after paragraph (q) Delete this insertion of paragraph (r) in section 6 of the election offences Act We find this criminalization of failing to sign an election return form unconstitutional. The amendment in (1FG) above is a sufficient penalty because failure to sign means you may not use these unsigned forms as evidence in case of a petition.

The Second Part of the NCCK Memorandum now seeks to draw your attention to the other key areas that will need Senate’s attention and leadership at this very early stage and as part of the Post election review and reforms.
2.1 Reforming Elections Management and Administration in Kenya

The consolidation of electoral democracy in Kenya is routinely undermined by a weak election management body. Election management in Kenya remains the weakest link in so far as attainment of representative democracy is concerned. The shortcomings of IEBC in the post 2010 elections (2013 and 2017) require radical changes and overhaul in the composition, structure, tenure and management of elections in Kenya.

Recommendations

• The conduct of the IEBC in 2013 and 2017 elections has brought into sharp question the viability of the independent model of appointment of the Commission as provided for in Section 7A and Schedule 1 of the IEBC Act of 2011. The resignation of the 4 Commissioners and attempted re -joining of the 3 Commissioners further call for clarity in dealing with issues of appointment of the Commission. While there has been a strong recommendation for the IPPG model that managed the 2002 elections, experience elsewhere particularly in Mozambique that adopted the model did not engender sufficient confidence. Given the contextual dynamics of elections in Kenya, the independent model should be complimented by political parties’ appointees to the commission. Empirical research establishes the fact that in politically divided contexts such as Kenya, political appointments of the Commission is crucial in mitigating problems associated with bias . Schedule 1 of the IEBC Act should be amended to provide for the procedure of appointing the commissioners reflecting party strength. The Political Party Commissioners should be not more than 3 of the seven and none of these should be the Chairperson or Deputy.
• Amend Section 7 (2) of the IEBC Act to provide for both part time and full time Commissioners. The Ghanaian model of 3 full time commissioners and 4 part time commissioners should be considered. Political Party appointees should be part-time with one other member of the Commission. The political party appointees need not have a fixed tenure as they represent interests that may fundamentally shift in the course of time.
• The qualification for the Chair and the Vice Chair should be the same. Same qualification of the chair and vice chair was the case in the National Assembly and Presidential Elections Act (Cap 7- repealed), and the practice in the Electoral Commission of Ghana. This move will cure the potential for a constitutional vacuum and an attempt by parliament to elevate the position of the vice chair as was witnessed by the 11th parliament in the middle of the 2017 elections. Accordingly, Section 6(1) of the IEBC Act should be amended to make provision for same qualification of the Chair and the Vice Chair.
• The Church has recommended and you should consider it, that the Chair of IEBC need not be an Advocate of the High Court of Kenya. Elections management and administration and the leadership of such a body require to be freed from the current limits of law qualifications. It has not been demonstrated that the qualifications of a law degree has shielded the country from either malpractices or it has provided robust leadership.
• The experience of 2013 and 2017 elections pointed to the obvious dangers inherent in multiple centers of power in the Commission. The recommendation of Kriegler on the organisational structure of IEBC that called for a clear demarcation of roles and responsibilities between the Commission and the Chairman was based on the experience with the ECK in 2007. However, the conduct of the Secretariat during the 2017 elections leads to one fundamental question. What should the Commission Chairman do when the Secretariat decides to go rogue? International best practice demonstrates that a functional EMB should have one center of power. The Ghana model where the Commission Chair exercises full policy, administrative and operational functions of the commission should be considered. Amend Section 6 and 10 of the IEBC Act to vest overall responsibility in the management of the commission to the chair.
• At the Commission level, the commissioners exercise collegiate authority through the plenary. The 2017 experience however revealed serious intrigues, struggles and opacity with which IEBC dealings and transactions were conducted. To enhance accountability and transparency in the conduct of IEBC plenary meetings, coverage and recordings and Hansard reporting should be encouraged as umpires operate in a game. Kenya has a unique problem of mistrust, betrayal and backstabbing that needs ownership and response.
• Review the Code of Conduct for Commissioners and staff to provide for among other things, the enforcement mechanisms, the establishment of Committees, the terms of reference and accountability mechanisms, and the procedure for appointment of the staff in the committees.
• A Constitutional level Ombudsman should be placed at IEBC during the three months to the Election Day. May be the Commission on Administrative Justice (Ombudsman) should play this role during the three months of elections because rights and the sovereignty of citizens is at stake here. Violations of rights in the hands of the IEBC should be addressed, redressed and dispensed with expediently.

2.2 Voter Registration and the Maintenance of Voter Register

Integrity of the voters register is predicated on two mutually reinforcing elements of accuracy and completeness of the suffrage. The Kriegler report, the new constitutional framework (2010) and the boundaries delimitation, concluded in 2012, necessitated a fresh voter registration presumably to premise voter registration on the higher principles of accuracy, verifiability and the principles articulated in the Constitution of Kenya 2010. These elements found expression in the principles stipulated under the political rights in Article 38, Article 81 of the Constitution, the Elections Act and the Regulations on Voter Registration.

Recommendations

• The Constitution requires no amendment in relation to the voter registration. It engenders adequate clarity in relation to the right to vote; qualification of registration as a voter, and the mandate of the IEBC in relation to voter registration.
• Comprehensively articulate and clarify the definition of Principle Register both in the Election Act and the Election General Regulations.
• Align Voter registration with other voter registration data bases notably the national Identity cards and the proposed Integrated Population Registration System. This is the practice in South Africa and Rwanda.
• Articulate a comprehensive framework for the implementation of voter registration for Kenyans living in the Diaspora.
• Integrate technology in the voter registration process and link that with the register on Election Day. This will minimise reliance on multiple reference materials on Election Day.
• IEBC should harmonise and align the election centers for voter registration and polling stations during voting to minimise misalignment and missing names on Election Day.

2.3 Boundaries Delimitation

The IEBC concluded the review of constituencies commenced by the interim Independent and Boundaries Commission (IIBRC) in 2012. The Kriegler Commission had made critical findings regarding successive boundaries delimitation process prior to the 2007 general elections. The Commission found out that there was evidence of gerrymandering leading to imbalanced representation. There was lack of clear procedure and criteria for boundaries delimitation. The IIBRC was mandated to undertake a comprehensive boundaries delimitation process and correct historical imbalance in representation.

Recommendations

• Article 89 of the Constitution is comprehensive with respect to boundaries delimitation.
• Schedule 5 of the Elections Act, 2011 has elapsed. Therefore there is no statutory framework to implement Article 89 of the Constitution. Accordingly, the Elections Act should be amended by including a specific part to regulate boundaries delimitation. Issues such as administrative framework, timeframes, methodology, civic education and disputes resolution arising from boundaries delimitation should be included.
• Draft Boundaries Delimitation Regulations to give the amended Election Act legal effect.

2.4 Election Integrity

IEBC is a victim of fate, imprudence by its predecessors and itself with respect to financial management. Prior to the Kriegler Commission, it had been mooted that the budget of the Commission should be a charge on the consolidated fund and not subject to review by Treasury or parliament. The objective was to insulate elections budgeting from partisan debate in parliament or cabinet as a means to reinforce the independence of the Commission. The Kriegler Commission however, made findings of significant unaccountable management of funds by the ECK and reserved an unequivocal recommendation for full financial autonomy. With the establishment of IEBC financial management and impropriety increased as was evidenced by integrity issues that dogged the commission in 2013 and 2017 elections. Integrity issues surrounding IEBC has ensured that the cost for managing elections in Kenya has risen and surpassed many jurisdictions including in developed countries .

Notwithstanding the foregoing, the IEBC Act makes elaborate provision with regard to funding of the Commission. Section 17 provide for sources of funds of the Commission, Section 18 establishes the Independent Electoral and Boundaries Commission Fund, while Section 19 directs that administrative and other expenses of the Commissions should be charged to the consolidated Fund.

Recommendations

• Formulate comprehensive Regulation of the IEBC Act to provide for the mechanism of budget which should include among others, details on comprehensive planning, consultations with key stakeholders and publication of plans. Once the budget is approved by the Commission it must be submitted to the Treasury and Parliament for adoption without variations.
• Provide for a strict mechanism for financial controls. The Commission should enact a policy for prudent financial management. IEBC procurement plans should be published and subjected to scrutiny by stakeholders.
• Revise the IEBC (Fund) Regulations to elaborate on the audit process; establishment of a Commission Level Audit and Compliance Committees comprising at least two observers drawn from established audit firms, the Political Parties Liaison Committee (PPLC) and CSOs and religious organizations.
• Develop Regulations on human resource management making specific provision on appointment, disciplinary and termination of the personnel.

2.5 Institutionalisation of Political Parties

Recommendations

• Operationalise substantive appointment of the Registrar of Political Parties provided for in the Political Parties Act 2011.
• Promulgate democratic nomination rules and procedures for political parties and the same should be entrenched in the Political Parties Act and in the constitution of political parties with the necessary modifications.
• To enforce party discipline, clarity is required through Regulation to enforce constructive resignation from a political party contemplated under section 14 (5).
• Amendments of Part III (Allocations and Disbursement of Political Parties Fund) to review the threshold for eligibility to compensate especially parties that performs well in an ensuing general election.
• Enact a Regulation to empower the Registrar of Political Parties to sufficiently oversight the Political Parties Fund. The Regulation should deal with the maintenance of records, audit, review of books, disclosure of expenditures and contributions among others.
• Amend Section 10 and 11 of the Political Parties Act to provide for sufficient clarity with respect to mergers and coalition. Post-election agreements and arrangements that parties get into following an election should be elaborated.
• Harmonise the Elections Act and Political Parties Act to operationalise Political Parties Liaison Committee as an effective Alternative Dispute Resolution Forum, borrowing on the model of the Inter Parties Advisory Committee (IPAC) of Ghana and South Africa Multi Party Liaison Committee (MPLC).
• Make provisions relating to political parties governance, accountability to its members, recruitment. More specifically enjoin the governing body where a political party is not in compliance.

2.6 Kenya Integrated Election Technology Systems (KIEMS)

The Bi-partisan parliamentary committee chaired by Senators James Orengo and Kiraitu Murungi made progressive recommendations on the use of technology in elections in Kenya that was subsequently entrenched in the Elections Act . However, in a bid to water down the use of technology, parliament amended the Elections Act to provide for a combination of manual and technology during the 2017 elections. The conduct of the IEBC and the attitude of the Commission Secretary also pointed to reluctance on the use of technology. The bungled procurement of technology both in 2013 and 2017 elections by IEBC calls for an audit and review with attendant reforms to make technology effective. The Post election Audit that IEBC has released is internal and now an external stakeholders Audit is needed urgently.

Recommendations

• The Constitution of Kenya 2010 is elaborate and envisages a substantial change in electoral infrastructure to a more ICT oriented framework.
• Review of the Elections Act should seek to align the transparency objectives contained in the principles of representation as elaborated in Article 81 of the Constitution.
• Recommendations by the Orengo-Kiraitu Committee should be reviewed and entrenched in the Elections Act to substantially integrate technology in election.

2.7 Results Management System: Counting, Tallying, Transmission and Declaration of Results

Results management system pose significant challenges on election management and administration. Despite clear constitutional provisions and the judiciary intervention during the 2017 elections, handling of election results remains a big problem. The fundamental question involving results management is this, what happens when a voter casts a ballot and the results are declared? In 2007, 2013 and 2017 the flow of results from the polling stations to the constituencies and finally to the national tallying center reflected massive interference so that the true reflections and aspirations of Kenyans could not be ascertained.

Recommendations

• Constitutional provisions in Article 1, 38, 81, 86 and 138 make clear directions and elections should be complied with.
• The Elections Act 2011 should reflect and embody clear constitutional provisions with respect to Election Day activities.
• Decisions of the Maina Kiai case on the finality of the vote at the polling station and the constituency that involved interpretation of Article 86 of the Constitution should find expression in the Elections Act (2011) and the Election General Regulations (2012). (we note that the Amendment to section 39 of the Elections Act is part of these efforts but is far from being sufficient) The accounting and publication of results at the polling station and constituency level is important for accountability and administrative efficiency.
• The Chairman is recognised as the national Returning Officer in respect to the Presidential Elections. However, the architecture of elections is still based on the practice that returns are made at the constituency level and are not subject to review. The process is indeterminate at the national level especially when allegations of arithmetic changes or rectification of constituency returns are made at the national level. Election General Regulations (2012) should be amended to spell out clearly the protocols of handling presidential results and returns from the constituencies.
• Domestic Election Observation should play a more active role in Results Management and not rely on the IEBC for final results. In Ghana, the umbrella citizens observer group (The Center for Democracy and Development, CDD-CODEO) plays a more active role in the results reconciliation process. In Kenya, the Election Observation Group (ELOG) results should be seen to be independent of the IEBC results . The observers’ findings should not be constrained to appear to concur with IEBC.

2.8 Elections Dispute Resolution

The election dispute resolution in Kenya is one area where remarkable progress was achieved during the 2017 elections. This was in large measure due to the progressive interpretation of the constitution by the judiciary and administrative measures undertaken by the judiciary to transform the Judiciary Committee on Elections into a permanent committee to help in early preparations in anticipation of numerous electoral dispute post 2017 elections. The legal framework for elections dispute resolution in Kenya is set out primarily in the Constitution, the Elections Act, the Independent Electoral and Boundaries Commission Act, and the Political Parties Act. While remarkable progress has been noted since 2013 elections, electoral dispute resolution regime still needs to be harmonised to make it less complex. The legal framework provides for electoral dispute resolution both at the pre-election and post-election phase.

Recommendations

• More clarity is needed on the overlapping jurisdictions between the Political Parties Disputes Tribunal (PPDT), IEBC and the High Court on disputes arising from nominations. It should be noted however that administrative decisions taken by the three bodies greatly improved nomination disputes and minimised confusion noted during the 2013 elections . Amend Section 40 of the Political Parties Act and Section 74 of the Elections Act (2011) to engender more clarity.
• Appellate jurisdiction on the decisions of the Political Parties Disputes Tribunal (PPDT) that potentially extend all the way to the Supreme Court should be reviewed. This would require amendments to Section 40 of the Political Parties Act. Elaborate appeal process on the decision of the PPDT defeats the cardinal principle of expeditious resolution of electoral disputes.
• Amend Article 140 to extend the period for determination of the Presidential Election disputes. The experience with 2013 and 2017 elections demonstrates that the 14 days provided for in Article 140 (2) is insufficient. The extension should however be counter balanced with the need for expeditious resolution of the presidential dispute. NCCK believes 21 days may be more appropriate although most stakeholders have proposed 30 days.
• Appellate process for all other elective offices should terminate at the Court of Appeal level. This proposal should entrench in Article 164 of the Constitution. The current practice where all appeals (for other elective offices) end up in the Supreme Court militate against the principle of finality and expeditious resolution of electoral dispute which is an important principle governing electoral disputes.
• Judiciary Committee on Elections (JCE) should make administrative arrangement to continuously study and analyse the electoral law jurisprudence and develop consistency and certainty on major issues for example, pre-trial conferences, trial process, scrutiny, recount, declaration of results, determination of disputes, and costs. Analysis of the various cases petitions revealed inconsistencies in certain instances.

4.9 Gender Representation: Attainment of 2/3rd Gender Rule

The Constitution is progressive and aspirational in respect to women participation in political leadership. The Constitution also makes provision for international laws that Kenya has ratified as part of the laws in Kenya . Kenya ratified the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Mainstreaming women in elective positions in Kenya is poor compared to other countries in the region despite the constitutional directive entrenching the gender quota . Indeed, since 1992 elections, Kenya has never attained 30% women representation when the current trend demonstrate that Rwanda has 56.3%, South Africa 42.3%, Tanzania 36% and Uganda 35%. The immediate priority is to facilitate the implementation of affirmative action agenda of the constitution to secure the implementation of the measures required to implement the two thirds gender rule in elective bodies contemplated under Articles 27 (8) and 81 (b).

Recommendations

• Political Parties should review their nomination rules and procedures to ensure that more women are nominated in positions of leadership. It is through progressive party internal mechanisms that the African National Congress has ensured the realisation of over 30% women representation in the legislature. We now know that achieving Constitutional Amendments is proving unachievable. We propose that Political Parties be required to nominate at least 35% of all parliamentary candidates in their known stronghold to vie on their party tickets. This will help greatly in this endeavour.
• To realise the principle articulated under Article 81, the Supreme Court in its advisory opinion stated that a constitutional amendment must be obtained to anchor legislative provisions for mandatory two-thirds gender principle.
• Amendment of Article 97 and 98 of the Constitution to introduce proportional representation to facilitate the realisation of 30% women representation should be considered.

4.0 WAY FORWARD
We recommend that the Senate once again leads Parliament in using the opportunity of the Election Laws (Amendment) Bills to substantively take on board all these recommendations and others not yet presented before this committee. This may turn out to be the only sober effort at improving our electoral processes and systems before the hoped for constitutional reforms are undertaken in the future.

Signed at Nairobi on this 12th day of March 2019.

Rev Canon Peter Karanja
General Secretary
National Council of Churches of Kenya

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