Parties escape penalty for illegal recruitment of members

UDA offices in Nairobi. [File, Standard]

The High Court has declined to hold political parties accountable for illegally registering persons as their members.

Justice Lawrence Mugambi ruled that four petitioners had not attached an electronic evidence certificate to authenticate data collected from UDA, Jubilee and Farmers parties.

“As such, the electronic evidence relied upon in this petition does not meet the legal threshold of admissibility and is inadmissible. The petition essentially relies on electronic evidence without which it stands no chance and must therefore inevitably collapse for want of proof," said Justice Mugambi.

Ruth Khanali, Chrispin Mayaka, Kelvin Ndoho and Katiba Institute had sued the parties and the Registrar of Political Parties, and named the Office of the Data Protection Commissioner, the Commission on Administrative Justice and the independent Electoral and Boundaries Commission as interested parties.

The three claimed that sometime in June, 2021, when the registrar introduced a verification portal, they were shocked to find that they were affiliated with the political parties despite not registering or giving their consent.

They pursued the matter with the Data Protection Commissioner, who subsequently ordered that their names be deleted.

The petitioners argued that the Registrar of Political Parties received at least 200 complaints concerning the irregular registration.

They told the court that instead of the registrar remedying the situation, the office opted to collapse the platform, denying Kenyans an opportunity to pursue the political parties who were engaged in the illegal recruitment.

They lamented that they were directed that they should resign from the parties, despite them not being voluntary members in the first place.

While opposing the case, the registrar argued that the system is curated in such a way that anyone illegally recruited could state it as the reason for resignation.

At the same time, the office said that there were clear channels to raise a complaint against any political party.

Farmers Party, on the other hand, urged the court to find that the petitioners had jumped the gun by approaching the court before exhausting the remedies provided for by the court.

Although the judge threw out the argument that the petitioners had not exhausted the laid-out processes, he said that they were required to prove that they were illegally recruited. 

The party’s Secretary General, John Kahura claimed that the four never raised the issued they had claimed in the case before.

He argued that the party allegedly maintained a high standard of data protection for its members.

Despite being sued, UDA and Jubilee did not file its response in the case.

The petitioners’ lawyer Joshua Malidzo argued that it was unfair and illegal for political parties to have members who do not associate or affiliate with them. He also said that it was strange that his clients’ data was in the hands of third parties without a consent.

“The respondents violated the petitioners right to freedom of association, including the right to form, join, or participate in any association of any kind,” argued Malidzo.

He asserted that the registrar of political parties ought to have cracked a whip on the errant parties while at the same time, publish the register for Kenyans to know who was in which party.

Although the judge threw out the argument that the petitioners had not exhausted the laid-out processes, he said that they were required to prove that they were illegally recruited.

Justice Mugambi said that despite attaching emails to the case, they did not produce the certificate to authenticate their claims.

“In the instant case, the Petitioners failed to comply with the requirements of Section 106 B (4) for they did not file the certificate of electronic evidence. As such, they avoided the

legal obligation of ascertaining the genuineness and the integrity of the electronic record they offered before the Court as their evidence,” he ruled.