Election law too blunt to curb offences

A journalist's question to Deputy President William Ruto as to whether he had started early campaigns resulted in an interesting though expected response. Dr Ruto, a leading presidential aspirant, was categorical that what he was engaged in was the inspection of development projects as part of his official duties. As expected, a lobby group taking issue with his position on campaigns.

The genesis of the controversy is the disjuncture between the law and reality in Kenya. While the law envisages that campaigns will be conducted during a designated period, in practice the announcement of results for one General Election marks the unofficial start for the next one.

For the 2022 elections, the Independent Electoral and boundaries Commission (IEBC) is yet to gazette the campaign period. Despite this, campaigns are already in top gear despite the denial by Dr Ruto. To be fair, all presidential aspirants are engaged in campaigns already.

The idea behind having a designated campaign period is to ensure that the country is not in a permanent electioneering frenzy as this affects the economy. Sadly, for Kenya, at least two years in every five-year election cycle is lost to politics with only three years dedicated to national development engagement. Such an environment is not conducive for investments and progress.

The law on election seeks to regulate all activities to ensure that there is fairness and that the resulting outcome is credible and reflects the will of the people.

Two areas of concern are normally the influence of money and the question of election offences. While the Constitution recognises the need to rein in both as part of efforts to guarantee credible polls, the election law has largely failed to deliver on the constitutional intention.

This election has already seen the use of large sums of money by politicians if the anecdotal evidence is anything to go by. From the many rallies being organised, the use of choppers, a huge array of high-end vehicles, mobilisation cash and the introduction of a new concept of empowerment, money is a huge influencer of the 2022 elections. It demonstrates why the Election Campaign Act is an important piece of legislation.

The fact that Members of Parliament have perennially frustrated the efforts to implement it through regulations developed by the IEBC is a confirmation of their collective interest in circumventing the law and benefiting from an uneven electoral playing field.

The second area is election offences. In 2016, the Election Offences Act was enacted as a dedicated law to address criminal malpractices in elections. Issues such as interference with the register, bribery, violence, use of public resources and technology are defined as conduct that impair credible elections and for which one can be arrested, prosecuted and if found guilty convicted.

The law provides for special magistrates and timelines within which these offences must be prosecuted, and trials completed. The only limitation though is that the offences can only be committed during the election period.

Its implementation is predicated on players in the electoral process conducting their activities within timelines stipulated in the law. However, since campaigns happen outside the IEBC period, the offences get committed at a time when the Election Offences Act is not applicable.

One can argue that normal penal laws come in. However, the disjuncture between the types of offences and the time when they are committed makes the law on election offences blunt.

As we get to the 2022 election season, it is interesting that the robust discussions on and review of election-related laws that precede every election cycle has not happened. It is urgent that it takes place. If it does, we should reflect much more on the limits of the law in curbing electoral malpractices and find innovative ways of complementing it as a tool.

Failure to do so will result in continued erosion of our democratic gains in the electoral process. The result will be a legal framework that is robust in content but ineffective in application.