Forget not these legalities of election fever

By Pravin Bowry

The anticipated elections, whether to the Office of the President, the National Assembly, the Senate, County Governors or the County Assembly has already kick-started an intriguing legal process hitherto unfathomed in the history of the country.

The first ever process under the 2010 Constitution will intimately touch every single Kenyan.

The fundamental right to vote and exert principles of democracy will bring forth a cauldron of players with many vested and contradictory interests.

The omnipresence of the likes of the International Criminal Court is not the only focal point. The spotlight will be focused on the impartiality and participation of the personnel of the Independent Electoral and Boundaries Commission, the newly constituted Police Oversight Authority, the Administration of Justice Commission, the Director of Public Prosecutions and even the Judiciary which will be called upon to resolve the pre-election disputes.

The underlying factor to be appreciated this time is that elections is going to be a multi-billion-shilling business. The elections will cost the country, political parties and individual politicians tonnes of money.

And out there, there are thousands of others waiting to exploit the bounty.

The newspapers are waiting for the advertising bonanza, the free-bee manufacturers and advertising agencies are sharpening their wits to exploit the economic boom which the elections will inevitably bring. The printing industry, the IT agencies and electronic communication companies are getting ready.

And in the big-time corporate world — the real and actual providers of huge off the record sponsors of favourite candidates and political parties — manouvering will have already started.

To have in place the right and favourite leadership is after all the accepted age old method of having a successful five-year strategic plan.

Lobbying, party donations, massive sponsorships in money and in kind are all geared to influence selfish interests and to get closer to the doors of power for the next few years.

Under the umbrella of the Constitution will come into place the laws contained in the Elections Act, 2011, the Political Parties Act, 2011 and the provisions of the Independent Electoral and Boundaries Commission Act, 2011.

Fine of Sh25 million

The Elections Act specifically creates 13 offences. Offences relating to register of voters and voters’ cards, multiple registrations as a voter, maintenance of secrecy by-election officers, personation, treating, undue influence, bribery, use of force or violence during elections, use of national security organs, offences relating to elections and use of public resources all can land the culprit in prison for up to six years.

Obligations are imposed on employers, there are election offences by candidates or political parties and other illegal practices are also enumerated.

Even the Independent Electoral and Boundaries Commission Act creates an offence of subverting the process of free and fair elections, or knowingly obstructing the Commission in the discharge of its functions.

The Proceeds of Crime and Anti-Money Laundering Act of 2009 has created over thirty offences and those contemplating money laundering or sponsorship of parties and candidates by perverted means must appreciate that the acts attract up to 14 years prison term and if the culprit is a corporate body a fine of Sh25 million "or the amount of value of the property involved in the offence, whichever is higher".

The Ethics and Anti-Corruption Commission, too, has a legal obligation to enforce the provisions of the Anti-Corruption and Economic Crimes Act.

The maze of corrupt deals and the urge to get on the election — bandwagon all prompted by election fever from multi-million procurement deals — from voting cards, helicopters, specialised surveillance equipment etc. will be unbelievable.

All these provisions do not and cannot overshadow the conventional criminal offences contained in other enactments such as the Penal Code. If assaults, rioting or murders take place the culprits must face the full brunt of their acts.

The Rome Statute offences of genocide, crimes against humanity, war crimes and crimes of aggression all are a back drop to be wary of.

There exists, without a shadow of doubt, the law in the statute books, updated under the mind-boggling post — Constitution enactments, to hold elections in an internationally acceptable, democratic and fair method.

The challenge is and will be whether the law enforcement agencies are willing, able and resourced to enforce provisions of all laws without fear or favour and within the meager resources which will be given to the various agencies.

Nefarious methods

At least the Police Force, the Registrar of Political Parties, the Director of Public Prosecutions, the Ethics and Anti-Corruption Commission, the Independent Electoral and Boundaries Commission and the Ombudsman are all aware of their responsibilities and have one year to assure and ensure Kenyans only one thing — that the law will be followed to the letter.

One law must be specifically highlighted. Taxpayers billions will be saved if the Public Procurement and Disposal Act is followed during this time and the agencies created under the Act can work diligently, for procurement by nefarious methods is where the taxpayer (or is it the voter?) will be raped by all the economic sharks.

The writer is a lawyer. [email protected]