Introduction

On 4th August 2010, Kenyans voted overwhelmingly to pass a new constitution following decades of clamour for a new constitutional dispensation. The constitution was promulgated on 27th August 2010 by HE President MwaiKibaki. While the passage of the constitution was widely acknowledged as a progressive first step, the challenge of implementing the constitution especially the election sector laws and the institutional framework for managing the elections was daunting. To begin with, the constitution anticipated rafts of legislations contained in the Fifth Schedule that are critical to its implementation. The timelines envisaged in the Fifth Schedule, particularly with regard to Chapter 7 legislations, that is “Representation of the People” were strict. Against these challenging environment, parliament enacted electoral law legislations as well as put in place the administrative framework that will govern the 2013 elections.

The clamour for a comprehensive Constitutional Reforms in Kenya, was dominated by the need to put in place a mechanism that could guarantee free, fair, transparent and credible elections (electoral reforms). This reality was informed, by the political and electoral environment that had been in place since Kenya attained independence in 1963, and persisted throughout the multi party dispensation (1991-2010). Thus the Electoral Reforms provided the single most overriding impetus for constitutional reforms in Kenya.

2013 Elections in Perspective

Kenya has held four general elections since the restoration of multi party democracy in 1991. From the standpoint of democratisation, these four general elections brought out one telling fact: That periodic elections, are not by themselves a guarantee for sustainable democracy. There has to be more. There is need for sound constitutional, legal and administrative reforms and institutional framework that provide strong pillars to anchor and consolidate democratic gains. The general election scheduled for 2013 will be the fifth in the series of multi party elections in Kenya. 2013 elections come in the wake of flawed 2007 elections and the post election violence in 2008 that was unprecedented in the history of Kenya. The 2013 elections will also be held under new constitutional, legal and administrative framework following the passage of the new constitution and the anticipated electoral legislations.

2013 Elections in Perspective Contd.

Given the prevailing political and electoral environment preceding the 2013 elections, it is imperative to appreciate the fact that the 2013 elections will be unprecedented in the electoral history of the country. The implication of 2013 is more compounded when one considers the following:

Provisions for a Run Off in the Presidential Elections if there is no clear winner in the first round.

Increased Elective Positions (from 3 in the previous elections to at least 6) under the new dispensation.

Serious Logistical and Administrative challenges on the part of the elections management body owing to the increased seats.

Challenges of political party nominations. Transitional Elections: Kibaki Succession. The Ongoing ICC Process will have fundamental implication on the

election. Expeditious Legislations on Representation. The newly created devolved units.

Electoral Laws: Principles of the Legal Framework for Elections

Objectives of a sound legal framework for elections should encapsulate the following principles.

Secure the integrity of the Process.

Provide Mechanisms for fair competition.

Adequate guarantees of the secrecy of the votes.

Ability to arbitrate over competitive elections

Electoral Laws in Kenya:The main laws that will govern the 2013 elections in

Kenya are;

The Constitution of Kenya.

Elections Act, 2011.

Political Parties Act, 2011

Independent Elections and Boundaries Commission Act, 2011

Supreme Court Act

Campaign Finance (Bill)

Election Management In Kenya Election Management and Administration was at the core of

the failure that was noted in the Disputed 2007 elections and constituted the main trigger for 2008 post election violence.

Scathing indictment by the Kriegler Commission on the then Electoral Commission of Kenya (ECK).

Kriegler Pointed out that the “2007 elections was irredeemably flawed that nobody would say with certainty who won or lost the elections”

Kriegler recommended the disbandment of the ECK.

Establishment of a new EMB.

Distinction between the Commission and the Secretariat

Fresh Voter Registration.

Constitutional Amendment in 2008 that established the Interim Independent Electoral Commission and Interim Independent Boundaries Review Commission.

Finally the Establishment of the Independent Electoral and Boundaries Commission (IEBC)

Constitution and Elections-Management

Representation of the people is comprehensively dealt with in Chapter 7 of the Constitution. Among the key provisions include;

The constitution of Kenya 2010, provides the overall framework for elections. Chapters 6 Leadership and Integrity, Chapter 7-Rpresentation of the People, Chapter 8- Legislature, Chapter 9 Executive, Chapter 10 Judiciary and Chapter 11Devolved Government.

General Principles for Electoral System that includes; Protection of Political Rights, Equitable Gender Representation (Not More Than 2/3rds of Members of Elective Public Bodies shall be of the same gender), and guarantees for free and fair elections.

Provisions for settlement of Electoral Disputes. Establishment of the Supreme Court whose jurisdiction will include among others, Petitions arising from Presidential Elections Disputes (Article 140).

Establishment of Independent Electoral and Boundaries Commission (IEBC) and a law governing the operations of the IEBC Bill (Article 88)

Delimitation of Electoral Constituencies (Article 89) Provisions Relating to Political Parties. Political Parties Law (Article 91) Provisions for Independent Candidates.

OVERVIEW OF KEY ELECTORAL LEGISLATIONS Independent Elections and Boundaries

Commissions Act (IEBC Act 2011)

Enacted by the National Assembly on July 5th 2011, to make provision for the appointment and effective operations of the Independent Electoral and Boundaries Commission established by Article 88 of the constitution and for connected purposes.

The Act is divided into 5 Parts namely; Part I Preliminary Section; Part II Administration; Part III Financial Provisions; Part IV Miscellaneous Provisions and Part V Savings and Transitional Provisions.

OVERVIEW OF KEY ELECTORAL LEGISLATIONS Contd.Salient Features of the Act include the following;

Part II on Administration outlines the functions of the Commission. The Commission shall consist of 9 Members with the Chair and Vice Chair. Qualification for the Chair is provided for and include among others meeting the

criteria for appointment as a Superior Court judge. Same qualification is not provided for the Vice Chair.

Term of office – A single term of 6 Years. Establishment of the Position of Secretary to the Commission. Distinction between the Commission and the Secretariat is also provided for. Part III: Financial Provisions provides for sources of funds to the Commission and

establishes IEBC Fund. The Act guarantee actual financial autonomy by charging the expenses of the

Commission to the Consolidated Fund (Clause 19). The management of the Commissions funds is vested on the Secretary who is also

the accounting officer. Independence of the Commission is guaranteed and the power to develop

regulations provided for. Savings and Transitional Section (Part V) has preserved the Officers (secretariat

of the Commission (33 -1) as well as the assets of the Commission (34-1)

Schedules First Schedule: Procedures for Appointment of the

Chairperson and Members of the Commission.

Second Schedule : Provisions as to the conduct of the Business and Affairs of the Commission.

Third Schedule: Oath of Office.

Fourth Schedule: Code of Conduct for Members and Employees of the Commission.

Fifth Schedule : Provisions Relating to the First Review.

FUNCTIONS OF THE COMMISSION The constitutional and statutory functions of the IEBC are to take

responsibility for the following: Conducting or supervising referenda Conducting or supervising elections to any elective body

established by the constitution Conducting and supervising any other election as may be as may

be prescribed by an Act of Parliament Continuo registration of citizens as voters Regular revision of voters register Delimitation of constituencies and wards Regulation of the process by which parties nominate candidates for

elections Settlement of electoral disputes including disputes relating to or

arising from nominations. This responsibility excludes election petitions and disputes arising after declaration of election results

Contd. Registration of candidates for elections Voter education Facilitation of observation, monitoring and evaluation of elections Regulation of the amount of money that may be spent by or on behalf of

a candidate or party in respect of any election Development of a code of conduct for candidates and parties contesting

elections Monitoring compliance with the legislation relating to nomination of

candidates by parties Investigation and prosecution of electoral offences by candidates,

political parties or their agents Use of appropriate technology and approaches in the performance of its

functionsThere is, of course, the residual omnibus power of the Commission to perform such other functions as are provided for in the constitution or any other written law.

EMB, Elections Management and Consolidation of Democracy In Kenya

•Election is the Most Important ingredient of a democracy although not the only one.

•As such election management and administrations must be above board to give expression to the

wishes of the voters.

•Is the IEBC ready 2013

•Key Electoral Process

•Composition of IEBC and establishment of the secretariat is complete.

•Development of Key Electoral Laws and Regulations has been completed save for Campaign

Finance Bill that lapsed.

•Delimitation of Constituencies and ward boundaries and establishment of the Polling stations.

•Registration of Voters has been completed which was done through Biometric Voter Registration

(BVR) and Verification machines will be used on election day.

•Party Nominations and the Resolution of Disputes that will arise as a result of party nominations

by IEBC. Concurrent Jurisdiction between IEBC, PPDT, and the High Court.

•Such Disputes Must be resolved after the parties have exhausted their own internal mechanism.

•Campaign Period (21 days before the election) IEBC must ensure compliance with the Political

Parties Act.

•Election Day Activities ( Pre polling, actual polling, counting, tabulation and transmission of

results, and declaration of results)

•IEBC will play a critical role to avert election conflict in 2013 elections.