In a landmark ruling, the High Court declared that political campaigns conducted outside the designated election period violate several fundamental rights and principles enshrined in the Constitution.
A three-judge bench comprising Justices Hedwig Ong’udi, Patricia Gichohi, and Heston Nyaga delivered the ruling on Tuesday.
The case, filed as a public interest petition, challenged the legality and constitutional compliance of political activities that take place before the official campaign period as defined by the Independent Electoral and Boundaries Commission (IEBC).
“A declaration be and is hereby made that carrying out of political campaigns outside the election period violates the right of equality and equal protection of the law, the right to life, freedom from violence, principle of impartiality, right to development, principle of rule of law and free and fair elections,” the ruling read.
The petitioners argued that incessant campaigns outside the election period disrupt the social fabric, interfere with citizens’ rights, and create an atmosphere of tension.
They cited the destruction of property during such campaigns as evidence of the negative impact on citizens’ right to life, freedom from violence, and the principle of the rule of law.
They contended that these campaigns enable well-funded politicians to dominate the political space, undermining fairness and equality, and the right to free and fair elections.
“Election campaigns, by their very nature, have the potential to impact negatively on the citizens of this country. There is no doubt that the election period is characterised by heightened political tensions, suspicions, negative profiling, and a general slowdown of the economy,” the judges noted.
“As such, this political season should not be a continuous situation.”
In their judgment, the court emphasised that early campaigns, particularly when unregulated or unevenly enforced, distort the fairness of elections.
The judges noted that candidates who campaign prematurely gain an unfair advantage through media and public platforms over those who comply with the law.
They held that such practices violate Article 27 of the Constitution, which guarantees equal protection, opportunity, and benefit under the law.
Additionally, the court directed the Attorney General to
take steps within twelve months to enact a law regulating political campaigns
outside the official election period.
