OF the total eight parts of the proposed new law set to be tabled in parliament anytime soon, various political analysts see the key ones as being Part IV (dealing with Accountability issues), Part V (outlining 'Prohibited Practices'), and Part VI (focusing on Penalties).
Starting with accountability, the draft bill requires each candidate to submit true details of all funds received as election expenses to his/her political party, which shall in turn prepare a comprehensive report for the registrar of political parties along with a financial statement of all expenses incurred by its candidates (plus all bills and receipts or "some other evidence of payment").
Political parties which fail to deliver such a report to the registrar, disclosing all funds received as election expenses – whether as gifts, loans, advances, deposits or donations; whether from individuals or from groups of people or from associations - will have committed "an act of illegal practice".
According to the proposed new law, the report should contain a breakdown of all election expenses; an account of personal expenses paid by each candidate; an account of all election-related funds received by the candidate or any representative (including the sources); a verification statement from the candidate him/herself; and an authentic audit report.
Meeting report deadlines (or else?)
While candidates have a deadline of 30 days after polling day to submit their reports to their political parties, the parties themselves have 90 days following publication of the election results to present their final reports to the registrar.
As for penalties for failure by a political party to file the financial report and audit report to the registrar as required by the proposed new law, section 18 (4) states that the party will be fined 3m/- and also disqualified from contesting any further elections at any level, “unless it files both reports to the satisfaction of the registrar before the nomination day”.
The big questions here are whether such a fine (yes, three million shillings) is punishment enough for a whole political party, let alone an individual candidate; and also whether the disqualification aspect for failing to meet the set deadline (90 days) is really applicable, given that the latter part of the section (in quotes) appears to offer such a generous loophole for the offending party to rectify matters.
Section 19 is devoted to the obligation of every candidate, political party, and other periphery bodies involved in the elections (specifically NGOs, community-based and faith-based organizations) to keep certain records for accountability purposes, including the amount and nature of funds received for election expenses; the names and postal, physical, electronic addresses of all donors; all anticipated funds and their sources; and funds expended by candidates and their parties for nomination, campaigning, and the elections proper.
Apart from submission of the financial and audit reports to the registrar on time, each political party is also required to ensure that donations towards election expenses in the form of goods or services, are valued and recorded in accordance with the new law.
"The registrar shall, for the purposes of record keeping, make guidelines prescribing the manner in which such records should be prepared and maintained. All records shall be audited by the Controller and Auditor General, in accordance with provisions of the Political Parties Act,” states section 19 (subsections 3 and 4)
And according to the following section (20), political parties that fail to abide by the provisions of the proposed new law pertaining to disclosure of amount and sources of funds intended to be used as election expenses, will become liable for disqualification by the registrar from participating in that particular election - along with all its candidates.
Prohibited practices
Coming to Part V, the draft bill outlines a number of 'prohibited practices' which, if committed and discovered, will directly lead to the disqualification of the offending political party or candidate from ongoing elections. These 'prohibited practices' are neatly divided into three main categories: Unfair conduct(s), unconscionable funding, and conveyance of voters.
But getting down to the nitty-gritty behind the legalese language that permeates the document, the 'unfair conducts' described in section 21 are actually overt and covert acts of bribery at various stages of the elections process, while 'unconscionable funding' in section 22 refers to the much-debated and controversial (age-old) practice of takrima.
For example, in section 21 it is stated that any person who gives, lends, offers or promises any money or such valuable consideration, to induce any potential voter to either vote or refrain from voting during nominations or the elections proper, will have "committed an act of prohibited practice".
The same - as outlined in other subsections of section 21 - applies to similar inducement of voters in terms of employment offers, business offers and the like; whether done directly or indirectly; whether you are a giver, receiver or facilitator of such inducements (or an agent for one or the other); before, during, or after the nominations process or election proper.
But according to section 21 (2): "Where it is alleged that the act constituting prohibited practice was committed by an agent or any other person on behalf of the candidate, it shall be a defence for the candidate if he/she proves that it was committed without his/her knowledge, consent or approval - or that of his/her agent."
Again, if such an "act or transaction" can be proved to have been designed to "advance the interests of community fund-raising, self-help, self-reliance or social welfare projects within the constituency", it will not be deemed as prohibited practice, the proposed new law states.
New approach to 'takrima'
As for 'unconscionable funding', section 22 describes this as "directly or indirectly giving, providing, paying for, or accepting food, drink, entertainment, or provisions for the purpose of influencing any person to vote or refrain from voting during nomination or electoral campaigning processes."
This is closely linked to the third category of prohibited practices - 'conveyance of voters' - as outlined in section 23 of the draft bill. Here it is stated that no payment deals are allowed to be made to promote or procure the nomination or election of a particular candidate through transporting voters to or from polling stations by road, rail, waterway, or even by animal.
Similarly, no such payment deals are permitted "to or with a voter", for the use of any house, land, building, or premises to promote a particular candidate during nominations or elections.
In this context, the person committing an act of prohibited practice under this section includes he or she who pays for any of the afore-mentioned; he or she who receives or is a party to any such payment; and he or she who owns any instrument used to transport voters (including animals).
It, however, does not apply to a voter or group of voters who decide to hire “by themselves” (at individual or joint cost) any type of transport to and from the polling station.
Section 23 (6)(b) also offers an olive branch for voters who are unable to reach their polling station without crossing sea, river, valley or gulch. In such cases, it is stated, "means may be provided for conveying such voters equally to their polling station ." And this, according to the proposed law, will be the "responsibility of the government."
The penalties?
The proposed penalty for those who commit an act of prohibited practice, is disqualification from the ongoing nomination or election process. In the case of a disgraced candidate, the registrar will handle the disqualification process while allowing the political party involved to name a replacement candidate.