Does the law allow parties to hold joint nominations?

By Okiya Omtatah

The recent formations of the top-down pre-election coalitions by political parties, which shared candidatures for prime elective posts among the top leaderships of the parties in the various groupings, for the sole purpose of winning the presidency, has raised questions how individual partners will nominate candidates for the lower elective seats.

Since the coalitions were largely marriages of convenience after top leaders of political parties realised that they stood no chance going it alone, all parties in the alliances retain their identity and the legal capacity and duty to field candidates for elective seats.

Some presidential candidates are opposed to joint nominations because they stand to benefit most where each party under their coalition fields its own candidates. Their logic being that more candidates at the grassroots will guarantee a higher voter turnout since each candidate will mobilise their supporters to come out and vote not for them but also for the coalition flag bearer.

However, just like the Party of National Unity experienced at the 2007 elections, where it scored high in the presidential vote but performed dismally in elected Members of Parliament, many leaders are awake to the fact that a popular coalition can easily lose seats to the competition where the opposing camp fields a single candidate against those of their alliance members.

Hence, the various coalitions are considering joint nominations to ensure they don’t win the presidency but lose the parliamentary and county positions; to which most of the power formerly vested in the presidency has been devolved.

But the matter is not as straightforward an affair as it appears on paper. There are huge legal and practical challenges to be overcome. First, aspirants have invested heavily in their campaigns and are unlikely to accept joint nominations that don’t favour them.

To make matters worse, no political party can legally force its aspirants to go for joint nominations. Aspirants of each of the parties making up the coalitions retain their constitutional right to be candidates for public office on their party tickets, (Article 38(3)(c) as read with Articles 19(3)(a) and 91(1)(d, e, f, g, h) of the Constitution). Further, the various laws on the nomination of candidates by political parties don’t seem to provide for joint nominations. Even though in Section 3(g) of the Third Schedule of the Political Parties Act, 2011, coalition parties are required to state their coalition nomination rules in their Coalition Agreement deposited with the Registrar of Political Parties, Section 13(1) of the Elections Act 2011, is clear that each political party shall nominate its candidates.

In Section 29(1), on the power to nominate, the Elections Act is categorical that the persons who nominate a presidential, parliamentary, county governor and county assembly candidate shall be registered members of the candidate’s political party, not coalition of parties. Section 27 of the Elections Act required political parties to submit their nomination rules to the IEBC in advance. On the nomination of political party candidates, Section 31(1)(a) states that a person qualifies to be nominated by a political party for presidential, parliamentary and county elections for the purposes of Articles 97, 98, 137, 177 and 180 of the Constitution if that person is selected in the manner provided for in the Constitution or rules of the political party concerned relating to members of that party who wish to contest presidential, parliamentary and county elections.

However, in Articles 99(1)(c) and 193(1)(c)(i), the Constitution states that a person is eligible for election as a Member of Parliament, or as a member of a county assembly, respectively, if the person is nominated by a political party not parties. Clearly, there is no provision both in the Elections Act and in the Constitution for parties forming a coalition or an alliance to have their members jointly nominate candidates. Hence, before parties opt to hold joint nominations, the Independent Elections and Boundaries Commission should clarify whether or not the law allows them to do so.

The writer is a human rights activist