The High Court gave a judgment two weeks ago declaring the spending limits captured in the campaign finance regulations by the Independent Electoral and Boundaries Commission (IEBC) unconstitutional for not adhering to the doctrine of public participation.
However, the court held that the requirement for parliamentary approval before being gazetted was not necessary and went against the constitutional mandate vested on the IEBC.
Judge Anthony Mrima urged the IEBC to develop the regulations and spending limits in accordance with the guidance given in the judgment so as to give effect to constitutionalism.
This judgment underscored the importance of regulating the use of money in politics so as to ensure free and fair elections. While money is a necessary component of campaigns and conduct of elections, its unregulated use has the danger of tilting the playing field in favour of those who have too much of it.
In addition, it leads to capture of the political and governance process of a country by shadowy characters and tenderpreneurs who finance politicians’ campaigns in return for government contracts when these people win the elections.
This challenge is endemic not just in Kenya but in most countries. A few days ago, I travelled to Zambia to discuss Kenya’s experience with regulating its campaign finances. On the way from the airport, my driver made a very poignant statement, arguing that politicians in Africa are the same.
As they campaign, they will promise all manner of things but as soon as they get into office they will behave just like their predecessors, getting involved in one scandal after another.
My discussions in Zambia demonstrated that the focus on spending limits, while an essential component of campaign finance regulations, is not the most potent tool. Indeed, it may most likely work against the efforts to regulate money in politics.
I made the case, which applies to our context too, that we should invest more energy in enhancing disclosure of sources of money and what we spend it on. This increased spotlight on the quality of use and donations as opposed to the quantum will have much more impact on our politics.
First, requiring politicians to disclose what they spend on in their campaigns, without limiting the amounts, will help regulate illicit financial flows. Anecdotal evidence shows that a lot of money that politicians use in their campaigns is from corrupt sources.
They are reluctant both to disclose the sources of such funds or to account for its use. No wonder across the country politicians are dishing out handouts to the electorate. Its free flow is evidence that its source is also questionable.
Kenyans will shortly be required to file their tax returns. It would be interesting to match the returns for the aspirants for the 2022 elections with the amount of money they have spent on the campaigns. Since many of them claim that the amount they spend is from personal sources, the taxman can require them to pay tax on this income that they have and are using to campaign.
This act alone would enhance the levels of transparency since it would force politicians to accurately disclose where the money is coming from. Those who have donated too can also be counterchecked to see whether the amount is linked to what they declared to the taxman as their income for the year in question.
Additionally, once the names of the donors and the amounts they have contributed are known, it is possible to assess their background and determine their interest in the elections and hence their motivations for the donations.
This can be assessed against their linkages with and trading with government after elections. This way a spotlight can be shone on any corruption tendencies that accompany campaign finance donations.
The role of civil society and the media in enhancing transparency in campaign finance also needs to be strengthened.