ODM wins political parties fund battle against Kenya Kwanza

The High Court has declared Kenya Kwanza administration’s decision to reduce political parties fund illegal.

In a major win for the Orange Democratic Movement (ODM), High Court Judge Chacha Mwita found that Parliament cannot reduce the amount set in law.

The Judge argued that the money is provided for by the Political Parties Fund and ring-fenced by the Political Parties Act.

Justice Mwita said the money cannot be reduced through the Supplementary Appropriation Act.

The judgment means that ODM will now get Sh1.2 billion that had initially been slashed from the Sh6 billion fund.

“Having considered the petition and arguments by parties, and aware of the decision of the Court of Appeal on this issue, the inescapable conclusion I come to, is that the National Assembly has a positive statutory obligation to allocate to the Political Parties Fund money that is not less than zero point three percent of revenue collected by the national government,” the Judge ruled.

The Raila Odinga-led party had asked the High Court to suspend implementation of the supplementary budget after the Kenya Kwanza government slashed political parties' fund by Sh1.2 billion.

The Orange party's lawyer lawyer Jackson Awele told the court that initially, the allocation was Sh1.475 billion. However, Awele explained that this was below the Sh6 billion allocated to political parties during the 2023-2024 financial year.

The lawyer argued that a total of Sh1.2 billion was missing from the allocation in the supplementary budget.

Awele claimed that the intention of the Kenya Kwanza regime led by President William Ruto was to cripple multi-party democracy by starving opposition parties of funds.

“There is plausible cause to believe that the respondents’ actions are a well calculated, deliberate, surreptitious collateral attack on multi-party democracy, the fundamental pillar under-girding the Republican, sovereign democratic state that the Constitution declares Kenya to be by gradually undermining, weakening and destroying the effectiveness of political parties,” he said.

In 2019 Court of Appeal ordered the government to allocate at least 0.3 per cent of the national budget to political parties.

Each party was to get funds according to the number of its members in Parliament.

In court, Awele said Ruto assented to the Supplementary Appropriation Act (no 3), 2023, paving way for the use of the funds allocated.

However, he said the government allegedly amended the law and slashed the amount.

The Orange party argued that the Registrar of Political Parties, Ann Nderitu, confirmed that the reduction violated the law.

ODM asked the court to freeze the implementation of the supplementary budget.

In the alternative, the party urged the court to force the National Treasury Cabinet Secretary Njuguna Ndungú to release the full entitlement.

“The net effect of these reductions is that the petitioner or applicant, a political party with grassroots offices, several employees, member programmes and work plans in the whole of the Republic of Kenya has, without notice and in violation of its legitimate expectations in law been deprived of over Sh1.2 billion of much-needed funds thereby gravely compromising its ability to effectively discharge its mandate and or run its programmes,” said Awele.

The lawyer said a cursory review of the law signed by President Ruto showed the list of the offices or persons consulted and excluded political parties and the public.

He argued that public participation was cosmetic, designed to create the facade of compliance.

“Taken together with the colossal adverse variation to the appropriated funds to the political parties fund, it was imperative that all qualifying political parties and their members and members of the public at large be given a meaningful opportunity to appreciate and comment on the same,” said Awele.

ODM Executive Director Oduor Ong’wen argued that opposition parties will bear the greatest brunt and there is real danger of Kenya relapsing to autocracy or monocracy.

“The petitioner pleads that in passing the impugned Act, the National Assembly and the President failed in their mandate under Articles 10, 93, 94 and 139 to respect, uphold and defend the Constitution and in particular to promote and defend the edict of multipartyism and the rule of law,” said Ong’wen.

National Assembly Speaker Moses Wetang’ula and Treasury CS on the other hand argued that Parliament had powers to decide allocation to the fund.

They asserted that the case was a breach of separation of powers as courts could not force MPs and the Executive to give political parties money.

Prof Ndung'u told the court that the government had no more money to give as its focus was to settle 2022/2023 financial year carryovers, pending bills and provisions for emerging priorities and emergencies which included the drought and El Nino rains.

But the Registrar of Political Parties told the court that it was illegal and unfair to slash political parties' funds. Nderitu was of the view that the net effect of the decision is reduced meaningful inclusion of special interest groups in political and electoral processes, thus shrinking space for multi-party democracy.

She argued that during the financial year 2022-2023, Sh1.47 billion allocated to the Fund was reduced to Sh884 million.

In the following financial year, Sh1.47 billion was again allocated but was reduced by Sh876 million.