HUMAN RIGHTS LAW – GROUP 10,

STREAM 2
POLITICAL RIGHTS: RIGHT TO VOTE; JOIN POLITICAL PARTY; SEEK
ELECTIVE POSITIONS
RIGHT TO VOTE
Pillar of Democracy;
• The fundamental element of democratic administrations founded on popular will is the right to vote and participate in
elections.
• Reference to Article 38 of the Constitution as the foundation for this right.

Connection with Pre-requisite Human Rights;

• The right to vote in free, air and regular elections is linked with other prerequisite human rights which include the right to
freedom of opinion and expression which is guaranteed through secret ballot and the right to freedom of association and
of peaceful assembly.
• . The enjoyment of these rights is crucial to a meaningful electoral process. International covenant on civil and political
rights under Article 25 recognizes and protects the rights of every citizen to take part in the conduct of public affairs, the
right to vote and to be elected.
LIMITATIONS ON THE RIGHT TO VOTE
According to Article 83, this right however is subjected to reasonable restrictions under circumstances that may
lead to the limitation of the right to vote. This includes where

• A person is not a citizen of Kenya

• He/she has not attained the age of majority

• The person has been convicted of an election offence in the previous election

• The person is not of sound mind

• Time barrier- where a person arrives after closing of polling station

• Such name of the voter does not appear on the voters register

NOTE; This right is also accorded vulnerable groups such as prisoners. The state has an obligation to protect such
rights. Article 83(3) provides for administrative action to ensure that all persons legible to vote may be registered as
voters
RIGHT TO JOIN POLITICAL PARTIES IN KENYA

• Article 38 provides for the right to join political parties in Kenya. This provision is further backed by the
provisions under section 7 of the Political parties Act 2011 which requires political parties to recruit members
not fewer than one thousand registered voters from each or more than half of the counties, whereby regional and
ethnical diversity, gender balance and representation of special interest groups is observed this hence promotes
civic participation from the public. Article 91(1)(e) of the Constitution of Kenya 2010 also provides that every
political party should respect the right of all persons to participate in the political process including minorities
and marginalized groups.
REGULATING POLITICAL PARTIES IN KENYA
• The office of the Registrar of Political Parties is the one with the responsibility of registering and regulating
political parties. In line with this responsibility it has established a political parties management information for
processing political parties’ data and records as stipulated under Section 34 of the Political Parties Act 2011.

• For one to join a political party in Kenya one must be a Kenyan citizen and a registered voter then each party has
its own criteria for membership outlined in its constitution.

• NOTE: A person cannot be a member of two parties at the same time

BENEFITS OF JOINING A POLITICAL PARTY
• By joining a political party one enjoys certain rights such as:

1. Participation in party activities

2. Campaigning for one’s party on matters the party may want to push for.

3. Contesting for leadership roles within the party.

4. Participating in party nominations for a by election or even the general election.

• Failure to grant the people this right may amount to a violation of certain rights such as the right to assembly.
SEEKING ELECTIVE POSITIONS
• Every adult citizen has the right, without unreasonable restrictions, to be a candidate for public office, or office
within a political party of which the citizen is a member and, if elected, to hold office

• The International Covenant on Civil and Political Rights (ICCPR), Art. 25 provides that every citizen shall have
the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable
restrictions; to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage
be held by secret ballot, guaranteeing the free expression of the will of the electors.
QUALIFICATIONS OF PUBLIC SERVANTS
SEEKING ELECTIVE POSITIONS
• In the case of Eric Cheruiyot & 7 others v Independent Electoral and Boundaries Commission & 7 others
[2017] eKLR; the issue that arose questioned the qualifications of public servants seeking elective office as
expressed in Articles 99, 137, 180 and 193 of the Constitution

• Section 43(5) of the Elections Act was intended to provide a time frame by which a public servant or state
officer was to relinquish public office in order to seek elective office in accordance with the constitution. The
court declared S. 43 (5) of the Elections Act, 2011 unconstitutional and without any legal basis or force ab initio.

• It also highlighted the fact that public officers could only leave office to participate in the election process on
nomination for the general election or conclusion of the nomination process for the said general election.