This week’s decision by the High Court giving the IEBC full powers on determination of spending limits for political campaigns is a milestone in taming the role of money in Kenya’s politics.
The issue before the court was straightforward. The Constitution in Article 88(4) allocates the responsibility of regulating election campaign financing to the IEBC. However, when Parliament passed the Election Campaign Financing Act in 2013, Section 29(1) required that before IEBC gazettes any regulations on the matter, they would need parliamentary approval.
Pursuant to these provisions, IEBC submitted comprehensive proposals for regulation of campaign financing for the 2017 and 2022 polls. The regulations included inter alia caps on spending for various seats and the procedural requirements for the management of the campaign funds. Parliament, not all together unexpectedly, rejected the regulations on both occasions which meant we are going into the third election since the passage of the Constitution without a legal framework for this critical matter.
It will be remembered that Parliament delayed the passage of this law and even after passing the Act, postponed its implementation in 2017 to 2022. After listening to the litigants’ submissions, the court decided that IEBC was the institution with the sole mandate of determining the spending limits and thus declared Section 29(1) unconstitutional. The court only required that IEBC undertakes public consultations before determining the spending ceilings. Parliament’s role was limited to ensuring public consultations had taken place. While the decision is welcome, it will not apply to the funding of the 2022 elections.
It, however, provides a ray of hope that this matter may progress beyond laudatory statements of intent which politicians have consistently made while refusing to transform such statements to actionable provisions. No one is naïve to imagine that passage of the regulations will by itself cure the malady that money in politics introduces. Even in advanced democracies like the US, money drives politics and politicians have found innovative ways to challenge any rules that controls the quantum spent. The 2010 case of Citizens United, which allowed unlimited third-party spending on presidential candidates completely brought mayhem into America’s campaign financing.
Americans have now changed emphasis from controlling limits to requiring disclosure; so that the public knows who is funding which candidate and for how much. As Kenya takes early steps on regulating money in politics, we need to be aware of the unique ways in which campaign funding impacts our politics. Firstly, illicit money, usually monies looted from the State, oils the campaign machine.
No wonder most corruption scandals occur the year before and the year after the elections. Secondly, “government candidates” have an unlimited access to State funding for their campaign activities. They use public money liberally, and also use the State to deny their opponents access to third party funds.
The story is told that in 2007 one of the presidential candidates lost because six weeks to the elections, the State stopped a donation they were getting from abroad thus totally crippling the campaign. This latter challenge has no immediate cure and will continue to put “non-government” candidates at a disadvantage.
On the first issue however, if Kenya were to focus more on ensuring that candidates disclose all their sources of funding, it will not only limit the use of illicit cash, but it will also reduce the excessive unofficial use of public monies by “government candidates”.