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November 20, 2017

A letter to the President­—cc the IEBC

Supreme Court judges arrive for a hearing of the petition challenging NASA's presidential election petition, August 28, 2017. /REUTERS
Supreme Court judges arrive for a hearing of the petition challenging NASA's presidential election petition, August 28, 2017. /REUTERS
Dear Mr President,

Maybe you have been wondering about those “principles laid down in the Constitution”, to which the Supreme Court referred to when deciding that the August 8 presidential election had not been conducted in accordance with the Constitution and the law.

Until the Court has delivered its full judgment, we shall not be sure precisely what the judges were referring to. But we would like to draw to your attention to what seems to us as one of the most fundamental principles, which was perhaps not what the Court focussed on, but is an obvious aspect of “free and fair elections”, the phrase used in Articles 38(2) and 81(e) of the Constitution.

The principle to which we refer is the “level playing field”. The analogy is that of a sport, and the idea that neither side should have to struggle uphill while the other has an easy, downhill run.

THE BENEFITS OF INCUMBENCY

The most obvious cause of tilted playing fields is incumbency: In various ways, whoever is in office in the run-up to an election has a range of possible strategies for winning that are beyond the reach of the other side.

The things that ruling parties, presidents and prime ministers use to win another term are legion. They may try to make peace (in their own or other countries) shortly before the election. They drop taxes or raise social benefits as close to elections as they dare. They open, inaugurate or launch things — airports, roads, railways, hospitals, and bridges, almost anything — as close to the election time as they dare. They confer other benefits, like recognising groups as tribes. They know that the public have rather short memories, and are likely to be most affected by what happens not long before polling day.

And those in power have other tools at their disposal: A huge number of employees, official vehicles (fuelled at public expense), broadcasting stations, security machines, that may somehow find themselves used to purvey the virtues of the regime. Incumbents may have easier access to public spaces — such as squares, parks and stadiums — for rallies. Not to mention money in the government coffers; governments have even been known to print money in the pre-election period, enabling the ruling individual or party to pay for campaigning, albeit at the cost of causing inflation, and rising cost of living for the citizens after the election. 

The other side has far fewer techniques at their disposal: It can critique what government has done, or point out what it has not done, but it cannot itself do anything very much, other than promising to do great things if elected. But for the electors, it may be that a bird apparently in the hand is worth more than a whole flock in the bush of promises.

Looked at like this, the use of the opportunities available to incumbents does not seem very fair, does it?

OUR CONSTITUTION AND LAW

The drafters of the Constitution were aware of these temptations. They focussed a lot on parties: These are not to “accept or use public resources to promote [their] interests or … candidates in elections”. There must be law to ensure that airtime is fairly allocated to parties, including during election campaigns, generally regulating broadcasting “to ensure fair election campaigning”. There must be a political parties fund: This is not some free gift (of taxpayers’ money, of course, because money does not grow on trees), but to reduce the temptation to use other public money in a surreptitious way, or to raise funds from sources that will look for pay-back after the prize of office is won.

The law adds to these provisions. Did you know, “No government shall publish any advertisements of achievements of the respective government either in the print media, electronic media, or by way of banners or hoardings in public places during the election period”?  This in the Election Offences Act s. 14(2) — you signed it into law, Mr President.

Among the most valuable resources are the human ones. But the same Act is clear that any public officer, who “publicly indicates support for or opposition against any party, side or candidate participating in an election” commits an offence and if convicted, may be fined up to Sh1 million or imprisoned for up to three years (Section 15(1)(b)). And they may not use public resources to start any development project to support any candidate in that area. We suggest this includes supporting the President, who is a candidate in every area.

Section 14(1) of this Act prohibits anyone (not just parties, but candidates or anyone else) using public resources to campaign.

We should perhaps (though we should not need to) remind you of the guarantee of political neutrality of the security forces. They must not act in a partisan manner, further any interest of a political party or cause or prejudice any legitimate political interest or political cause that is legitimate (Article 139 of the Constitution).

OTHER COUNTRIES

Some countries go further. For nearly 20 years, Bangladesh required that for the six months run-up to elections, the Chief Justice should take over as head of government — to avoid the advantage of incumbency.

In the UK, during the election campaign period, public servants are expected to go into what is, rather unfortunately, known as “purdah”: They are expected to avoid doing or saying anything that could help either side in the forthcoming election.

In many countries, it is well established that major development and policy initiatives should not be taken by government in the run-up to elections.

YOUR POSITION

You have been placed in an unusual position. You are still President, but you are not guaranteed to be in that position for longer than the time before the swearing in of whoever is elected on October 17.

There are clear legal rules for some issues. We should see no more of the Presidential Delivery Unit, telling us (using public money to do so) that the Jubilee government has done great things. No county commissioner or regional coordinator should be preaching the virtues of your administration (or indeed criticising it). These are clearly against the law. And let us not see “goodies” dispensed to voters in the form of title deeds, or (meaningless) recognition of tribes.

You cannot be prosecuted; the civil servants who carry out the bidding of the office of the President are not protected.

Even if you are immune from prosecution, the principles of the Constitution on elections remain. You should abide by them.

THE IEBC

The commission is not only in charge of administration of elections, it is the overseer of fair behaviour. It may, for example seize public vehicles used for elections. It may prosecute offenders under the elections legislation.

Indeed, if it fails to carry out this policing function it is in breach of this duty — and failing to respect the principle of the Constitution and the law.

FINALLY

As President — under whatever circumstances — you have the obligation to respect, uphold and safeguard the Constitution (stressed by Article 131). Whether or not you are technically a temporary incumbent under Article 134, your current role is a temporary one. It is clear that you should not perform functions that have vote-getting implications. It is regrettable that you appear already to have breached this principle in your pressurising members of Parliament over their choices of Speaker in each house.

A president reelected on the basis of the special position, immunities, impunities and privileges, cannot really command the respect of all citizens and others. Worse would be a president re-elected on the basis of abuse of the law and the Constitution. Such situations also demean the high office that you have held for the last four-plus years, now hold in a different situation, and hope to hold again.

This time round, Mr President, can Kenyans see what a level playing field looks like?

 

 

 

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