MPs aren’t bluffing in plotting the defeat of the election spending caps in the Election Campaign Financing (Amendment) Bill 2020. As the date suggests, this isn’t a new Bill.
MPs may hide behind technicalities: that the IEBC acted in vain by gazetting the regulations out of time and without Parliament's approval. This is quite an ingenious way of throwing out the baby with the bathwater.
True, the law provides for the IEBC to publish the regulations one year before elections subsequent to Parliament's approval of the regulations.
The IEBC may have slept on the job waiting until the last minute to gazette the regulations in the hope that the hawkeyed MPs wouldn’t notice. Yet again, the IEBC may have acted in good faith hoping that MPs would regularise the gazettement retrospectively through an amendment process.
But trust MPs to always protect their selfish interests, even if they conflict with the national interest. The current Bill is an amendment of the original law that MPs in 2012 deferred to implement.
The rejection of the regulations has hence nothing to do with the filing by the IEBC being obsolete, let alone claims that the caps were too high — a precursor to commercialising politics.
By commercialisation of elections, MPs mean the caps were so high that those with few resources dared not venture into elective politics.
Indeed, by Kenyan elections official standards, the IEBC caps are excessively exaggerated. We’ve been told Kenyan elections are the most expensive in the world.
The IEBC proposed capping spending at Sh5.2 billion for presidential candidates, Sh433 million for governor, senator or woman representative, Sh33.4 million for MP and Sh10.3 million for MCA. These caps vary from county to constituency.
The sin of the IEBC in the caps mess is the casual and arbitrary manner in which it behaved without a clear formula showing how it arrived at the magnanimous spending spree.
That notwithstanding, in Kenya candidates spent lavishly and MPs weren’t about to pass regulations that will amount to self-incrimination.
Regulations tracking the source of campaign cash and how it's spent aren't palatable to an electoral process governed by voter and election officials’ bribery. Legislators prefer this be left open-ended so graft cash can be laundered during elections.
Some formalistic pundits have poured cold water, not on the provisions of the Bill, but on the ability of the IEBC to enforce what it proposes.
The IEBC is hammered for lacking an enforcement mechanism to monitor campaign finance. Others throw in fear-mongering. They allege that should the IEBC attempt enforcement, its officials will face violent reaction from supporters of parties that could, say, be disqualified.
The IEBC is anything but perfect. But enforcement of election laws isn’t the sole responsibility of the IEBC. Security isn’t its forte but that of police.
If a party were to violate campaign funds rules, it isn’t the IEBC that will investigate, but the DCI. As for monitoring, this is the responsibility of all institutions under the justice and law sector.
The fatalistic view that election funds donors wouldn’t want disclosure is defence of opaque and corrupt election spending. If I don’t want to be known to have donated, then I have the option of not donating my loot.
But if I seek to hide my identity as a donor, I should be a person of interest to security agencies. And there is nothing here about violating the right to privacy; I choose to support a public cause therefore it’s my civic duty to surrender my claim to privacy.
The delay in passing the Bill rests with MPs. They deferred the law in 2012, took their time to throw out the amendments, then blamed the IEBC.
The same fate might befall the law requiring representatives at all levels to be degree holders. Now that aspirants must produce a digital version of their degree certificates, many serving representatives tremble at being caught with their fake certificates.
Meanwhile, the truth is, no political contestant in Kenya willingly wants to be monitored on campaign funds. Much of what goes into campaign finance is looted from public coffers. Donors are those shadowy looters investing in future looting sprees.
But enough of pillorying MPs. They sometimes do public good. An example is considering amendments to the IEBC and Elections Acts. These would allow political parties to choose nominees to affirmative action slots after elections, and not before, as has been the case.
The current model has been an incumbrance on political parties.
The integrity of political party lists has been dubious. The pre-election lists have found parties flat-footed where crafty individuals pay their way onto lists of different parties.
Once on the lists, the lists are unamendable. Those listed can even campaign for opponents without worrying about removal.
And there's trouble especially because replacements must strictly follow the Zebra-listing – woman/man and vice versa. So, parties are saddled with non-members on their lists.
Allowing political parties to nominate after elections permits them to vet the loyalty, commitment and contributions of those they nominate.
But we may not be out of the woods yet should the BBI Bill come to be. It has it’s downside. Here, a more complicated process of nominating the runner-up in elections presents an enormous task for parties.
Runners-up will be listed nationally with the first past the post-qualifying. The negative consequence is that a party may have many runners-up, but pitted against a national list, secure no slots. Again, nomination slots could end up benefiting one region.
There are also arguments against why affirmative action slots should be so punitive to get. Why force a nominee aspirant, such as women, who’re already disadvantaged, into contesting just to be nominated? When did they overcome their disadvantages to compete?
And if they can vie, shouldn’t they be considered able and, hence, shouldn’t be considered either marginalised or disadvantaged to be nominated? Such is the imbroglio that awaits parties should the ruling today go the BBI way.
