Court suspends law on campaign finances

The High Court has temporarily suspended the implementation of the law requiring candidates vying for various political posts to unveil their campaign teams and file bank accounts.

Lady Justice Roselyn Aburili allowed the interim order to remain in force until January 12 when the case will be heard inter-partes.

The judge said the application by the Orange Democratic movement (ODM) challenging the electoral directive asking political parties and candidates to file their bank account details and names of their campaign committees has merit.

READ: Contestants who missed bank accounts deadline to know their fate as IEBC meets

“The case by ODM through its lawyer Antony Olucho raises serious constitutional issues which needs to be disposed of urgently,” ruled Justice Aburili.

The judge went on to grant a temporary stay of the implementation of the laws published on December 7, 2016 and directed the case be heard on January 12.

The Raila-Odinga-led party says the directive by the Independent Electoral and Boundaries Commission (IEBC) is illegal and ought to be quashed.

Mr Olucho said ODM is urging the court to prohibit IEBC from implementing the requirement to have campaign committees made known and also accounts for aspirants provided by December 8,2016.

The lawyer said the requirement has been overtaken by events now that it January.

Matter of hours

Mr Oluoch said the law is “unenforceable and unreasonable given that it only gave political parties a matter of hours to comply with a requirement that came into being 2013.”

ODM alleges that IEBC has been sleeping on its job for the last three years until December 6 2016 when it (ODM) asked what steps has taken to operationalise the Election Campaign Financing Act, 2013.”

Section 6 of the Act requires candidates for elective positions to appoint authorised persons and form campaign committees.

The party says in the case filed under a certificate of urgency a day after its letter to IEBC, the electoral body moved hastily and published a notice purporting to enforce Section 6 of the Election Campaign Financing Act, 2013 “ requiring all candidates for elective positions to appoint authorised persons and form campaign committees.”

ODM says IEBC does not have, “the legal authority to publish the Election Campaign Financing Guidelines in its website which it submitted to Parliamentary Committee on delegated Legislation on December 7, 2016 purporting to come up with rules/guidelines to regulate campaign financing.”

ODM says IEBC is required under Section 5 of Election Campaign Financing Act 2013 to make rules which it submits to Parliament for approval at least 12 months before an election.
“IEBC has not made rules which have been discussed and passed by Parliament and which should be adhered to by candidates, “ODMs legal officers Mr Antony Moturi says in his affidavit in support of the case.

Section 6 requires political parties and candidates to establish campaign finance committees and to “identify authorised persons to oversee and control the funds.”

‘Abuse of power’

The party says the notice to the political parties is “punitive, unfair, discriminatory, inconsistent, oppressive, capricious and an abuse of power.”

ODM also says the move by IEBC is therefore irrational, unjustifiable and actuated by malice and improper motives.

“No authorized persons have been nominated to vie for any elective position and therefore Section 6 of the Act can’t be enforced,” Mr Moturi says.

He adds: “Civil servants wishing to participate in the elections have not resigned and their deadline is February 7, 2017 and to implement the impugned decision of IEBC would be punitive, selective and discriminatory against public or civil servants yet to resign from service.”