International Centre for Policy & Conflict

(ICPC)
2011

Note on Fundamental Right to Information and Decriminalization of Politics

under the Elections Act, 2011 and the Role of IEBC
1. Introduction
The international Centre for Policy and Conflict (the Centre) is a not-for-profit
organisation registered as such in Kenya. The centre focuses on, amongst other
issues, public policy research and dissemination, access to justice and the rule of law,
good governance and human rights issues. As part of its mandate, the centre
engages key stakeholders both in the public and private sectors on these issues with
a view of sharing its perspectives and collectively contributing to a more free and
democratic culture in Kenya and the region. Following the enactment of the
Elections Act, 2011, the centre undertook independent research on how best it can be
implemented within the context of the new constitution while also meeting the
democratic threshold enshrined in the constitution. Needless to say that elections in
independent Kenya have been marred by innumerable incidences of violence and
lack of transparency and accountability. Within this context, the credibility of
candidates for elective positions is just as important and the process itself. This note
is intended to expound on the issue of the right of the electors to sufficient personal
information on the candidates before elections. In true democracy, sufficient
information on the candidates is inherently part of the electors freedom to make
informed choice and cannot be taken lightly.
2. Background Information
In recent history, an unfortunate pattern has emerged of violence in elections in
Kenya during general elections, by-elections and even civic elections. Most of these
incidences are often blamed on party nominations and poor management of
elections by institutions mandated to do so, especially the former Electoral
Commission of Kenya (ECK). However, one aspect often ignored and which several
researches and established practises have addressed themselves to is the question of
credibility of candidates themselves for elections to positions of public office. Indeed,
the issue of credibility goes to the core of the constitutional right to information so
that the public can make informed decisions on the candidates prior to elections.
According to the current practise, the electorate tend to be informed, rather
belatedly, of the criminal character of their representatives once they have been
elected with no recourse at their disposal. This has direct implication not only on the
quality of services they potentially receive from such candidates but also their
fundamental right to proper information under the constitution. The IEBC, just like
in other established jurisdictions, has a central role in reversing this trend and
guaranteeing the electorates fundamental right to information about the candidates
before elections.
3. Applicable Law
Perhaps unlike in the past, the IEBC has clear legal backing to enforce this principle
and ensure that candidates for elections meet the highest credibility test including
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their criminal history and financial probity. In fact, the law allows the IEBC some
latitude such that the candidates can be obligated to provide this information under
oath. As part of accountability mechanisms expected of the IEBC, this information
should then be publicly displayed to the electors prior to elections. Article 35 of the
Constitution on the right to information guarantees this basic idea of electors being
seized of adequate information, including criminal and financial history of the
candidates, in exercising their freedom of choice as anticipated under article 38 (2)
and (3). This information is pertinent to help the electors make informed decisions
on the candidates. Though rarely admitted, it is a fact that previous conduct of the
candidates informs their actions once elected. It would therefore be reasonable,
within the meaning of article 38 (3) (3) of the constitution, for IEBC to restrict
participation of candidates in elections based on their criminal background and
financial probity (including tax compliance and indebtedness to public institutions).
Moreover, as aspiring public/state officers, candidates for elective positions must
address themselves to the strict requirements of article 73 of the constitution and the
wider chapter six on leadership and integrity. This requirement calls for high
standards of probity on the part of public officers. Candidates with vexing criminal
record and wanting financial history can hardly meet this test. The IEBC, being a
public institution, cannot itself justify failure to enforce these requirements.
It is important to note that even though the Elections Act, 2011 has not expressly
addressed itself to these constitutional requirements, it accords the IEBC express
powers to formulate such laws and regulations that will guide proper conduct of
nominations and elections. In particular, section 109 (1) (c) of the Act mandates IEBC
to make regulation that;
...provide for the regulation of the process by which parties nominate candidates for
elections

This power is to be exercised by the IEBC by formulating regulations at least six

months to the general elections in terms of section 109 (3). It is within this context
that the IEBC must take the initiative and formulate regulations that will guide
political parties in undertaking nominations while insisting on cleaning politics in
Kenya. Inevitably, the regulations must incorporate need for potential candidates to
mandatorily declare their criminal background and financial probity.
4. Comparative Jurisdictions on this Issue
In taking this pragmatic step, the IEBC will be playing its rightful role in ensuring
transparent and credible elections in Kenya while also drawing on best election
practices worldwide. We opine that IEBC will also be saving the country of preemptive litigation which may delay elections purely on this issue. Undoubtedly, the
best experience is from India, the worlds best biggest democracy. Several
jurisdictions have implemented this requirement including Australia, Canada and
the UK. But perhaps the best example for Kenya on this issue in recent times is India.
In a precedent setting ruling, Indias Supreme Court in the Union of India vsAssociation of Democratic Reforms & Another (Civil Appeal No. 7178/2001) had this to
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say while directing the Electoral Commission of India (ECI) (Kenyas equivalent of
IEBC) to amend its electoral rules;
Under our constitution, Article 19 (1) (a) provides for freedom of speech and expression.
Voters speech and expression in case of election would include casting the votes that is to
say, voter speaks out or expresses by casting vote. For this purpose, information about the
candidate to be selected is a must. Voters (little man citizens) right to know antecedents
including criminal past of his candidate contesting election for MP or MLA is much more
fundamental and basic for survival of democracy. The little man may think over before
making his choice of electing law breakers as law makers (emphasis added).

Subsequent to this ground breaking ruling, the ECI amended its electoral regulations
to include the following, which we reproduce here for your ease of reference;
(1) Every candidate at the time of filing his nomination paper for any election to the
Council of States, House of the People, Legislative Assembly of a State or the
Legislative Council of a State having such a council, shall furnish full and complete
information in regard to the following matters in an affidavit, the format whereof is
annexed hereto as Annexure-1 to this order:
a) Case(s) is/are pending against the candidate in which cognizance has been taken
by the court.
b) Details of the assets (immovable, movable, bank balance, etc.) of candidate,
spouse and dependents
c) Details of liabilities / over dues to public financial institutions and government
dues
d) Educational qualifications (Name of School / University and the year in which
the course was completed should also be given.
(2) The said affidavit by each candidate shall be duly sworn before a Magistrate of
the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court
of the State concerned.
(3) Non-furnishing of the affidavit by any candidate shall be considered to be violation of the
order of the Honble Supreme Court and the nomination of the candidate concerned shall
be liable to rejection by the returning officer at the time of scrutiny of nominations for such
non-furnishing of the affidavit.
(4) The information so furnished by each candidate in the aforesaid affidavit shall be
disseminated by the respective returning officers by displaying a copy of the affidavit on
the notice board of his office and also by making the copies thereof available freely and
liberally to all other candidates and the representatives of the print and electronic media.
(5) If any rival candidate furnishes information to the contrary, by means of a duly sworn
affidavit, then such affidavit of the rival candidate shall also be disseminated along with
the affidavit of the candidate concerned in the manner directed above. Candidates
contesting local body elections are required to file similar affidavits.

In terms of Section 33A of the Representation of the People Act, 1951, read with Rule 4A of
Conduct of Election Rules, 1961, each candidate has to file an additional affidavit in Form 26
appended to the Conduct of Election Rules, 1961, giving information on the following:
(a) Cases, if any, in which the candidate has been accused of any offence punishable with
imprisonment for two years or more in a pending case in which charges have been framed by
the court.
(b) Cases of conviction for an offence other than any of the offences mentioned in Section 8 of the
Representation of the People Act, 1951, and sentenced to imprisonment for one year or more.

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What is discernible from the Indian experience is that electoral bodies, in our case
the IEBC, have capacity to ensure compliance with important regulations like this. In
Kenyas case, the IEBC has additional powers vide section 109 (1) of the Elections
Act to formulate these regulations. We accordingly urge the IEBC to seize the
moment and effect these important electoral requirements at all electoral units
established in the constitution. In fact with Kenyas devolved structures,
implementation of such regulations would largely follow Indias practise.
5. Conclusion
In conclusion, there is no doubt that the IEBC has a special role in ensuring that
fundamental rights to information, of freedom of choice and expression are given
effect in our electoral system. The legal support is already there and what remains is
for IEBC to take more proactive steps and implement these requirements. In
addition, the overriding need to help the electors appreciate the array of candidates
is bestowed on the IEBC. In particular, we propose that IEBC takes the following
steps in relation to the next general elections;
a) To invoke its powers under section 109 (1) (c) and formulate regulations
through consultative process to guide nomination of candidates for election
into public office.
b) To inform give effect to the constitution, particularly the chapter on
leadership and integrity, by including in the formulated regulations that
potential candidates for nomination must be utmost financial probity
including not owing anything to public institutions and declaring their assets
and those of direct dependants.
c) To require that potential candidates declare under oath both to their parties
and to the IEBC (upon nomination) their criminal history including pending
cases and potential sentences. This information must be shared with the
public prior to the elections and, in case of criminal charges that attract
sentences of more than 12 months then they are automatically disqualified.
d) To require that potential candidates produce tax clearance certificates from
the Kenya Revenue Authority (KRA).
e) To require potential candidates to obtain clearance from Ethics and AntiCorruption Commission in relation to corruption and related cases.
f) To require potential candidates to obtain clearance as to their compliance
status from the Higher Education Loans Board (HELB) and other public
institutions that he may be indebted to.

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