Registrar of Political Parties Lucy Ndung’u
NAIROBI: President Uhuru Kenyatta and Opposition chief Raila Odinga’s plan to curb ‘party hopping’ in the August polls is likely to be dealt a blow by a loophole in the Constitution and the subsidiary electoral laws.
Political party aspirants contesting for various seats in primaries set by the electoral body for April have a chance to maximise on an open window between it and that of independent candidates as stipulated under Article 85 of the Constitution, lawyers who spoke to The Standard say.
Though the political party bosses’ intention was to instill party discipline by ensuring that those who lose nominations were locked out of the exercise, the new discovery might undo this — unless nomination timelines are moved to reduce the over three-months’ window.
President Kenyatta and Deputy president William Ruto championed for the provision, insisting that parties should be anchored on ideologies and those unable to toe the line to ship out.
And the lacuna in law could complicate the plan by ODM leader Raila, Wiper leader Kalonzo Musyoka and Ford Kenya’s Moses Wetang’ula (Bungoma senator) to maintain a grip on their backyard by locking in losing political aspirants.
Elected leaders and aspirants deemed not loyal to the party leadership have been in a difficult spot, with some already decamping to other parties to secure nomination.
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Now with the adjustment to the Election (Amendment) Laws 2017, the period for submission of party candidates list for gazettement is 120 days to the polls.
This means that those disgruntled or aggrieved by the outcome of the primaries can contest as independent candidates, as the requirement for their gazettement is 90 days to the election.
“Political parties will be required to submit a list of their nominated candidates four months to the polls. The period was adjusted from two to four months,” said a legal expert.
He continued: “There is a lacuna in law that will enable those who lose at the primaries to still run as independent candidates. The aspirants can exploit this to ensure they remain on the ballot.”
MPs’ schemes to shoot down the Election (Amendment) Bill 2016 that was a result of the Windsor deliberations by the Joint Parliamentary Select Committee flopped after the principals whipped members to support it despite strong Opposition.
When contacted yesterday, Makueni Senator Mutula Kilonzo Jnr, who sat in the joint parliamentary team on the electoral laws, said the changes should have factored in the corresponding timelines.
“Parties were initially required to submit the list 60 days to the polls. This would have barred those planning to run as independent candidates, but now parties have 120 days,” said Kilonzo Jnr.
He continued: “The open window can be utilised going by the IEBC’s reviewed timelines.”
Homa Bay Senator Moses Kajwang’, however, sounded a warning that some of the loopholes emerging in law might spell doom for the elections.
“There will be a lot of litigation and this is disaster waiting to happen. Those who championed an end to ‘party hopping’ knew what they wanted to cure but now it turns out it should have been anchored properly. The enforcement can also be effected if done well,” said Mr Kajwang’.
For instance, said Kajwang’, those who will participate in party primaries must be registered party members by March 16. “Yet Kenyans are used to universal suffrage”.
One of the ODM MPs laughed off the matter, saying they warned the principals on the ‘party hopping’ clause but they refused to listen.
As per IEBC’s revised timelines released by chairman Wafula Chebukati, the parties are to submit party nomination lists to the commission from March 26 to April 5.
The gazettement and date of party primaries will be from March 30 to April 12. Chebukati said parties would conduct nominations from April 13 to April 26.
The commission will start dealing with the independent candidates from May 4, when they will be required to submit their symbols, letter of intent to vie and letter of clearance from the Registrar of Political Parties Lucy Ndung’u.
For some leaders fearful of clinching tickets of the larger parties, they have opted to form their own vehicles, such as the Movement for Democracy and Growth.
Already, the country has witnessed many defections as aspirants jostle ahead of the election.
Machakos Governor Alfred Mutua’s Maendeleo Chap Chap has received Jubilee defectors who fear that their party primaries will not be free and fair despite reassurance by Uhuru and Ruto.
ODM, Wiper, Kanu, Chama Cha Mashinani, Party of National Unity (PNU), Narc, Narc Kenya, Amani National Congress and Ford Kenya are some parties that have been ‘harvesting’ defectors lately.