Introduction

The Political Parties Amendment Act was assented to by the President of the Republic of Kenya on 28^th January 2022 after being passed by parliament.

This legal breakdown sets out the major changes that the said Act has introduced to the Political Parties Act, no 11 of 2011 (hereinafter “the primary Act”) and some changes to the Elections Act, no 24 of 2011.

Definitions

1.    The Political Parties Amendment Act (hereinafter “the amendment”) introduces the definition of a political party which was missing in the primary Act. The primary act only referred to the definition in article 260 of the constitution which in return referred to organisations contemplated in part 3 of chapter 7 of the Constitution of Kenya 2010. The new definition of a political party as introduced by the amendment is as follows “an association of citizens with an identifiable ideology or programme that is constituted for the purpose of influencing public policy or nominating candidates to contest elections; and b) includes a coalition political party”

The amendment has also introduced new terms, i.e., coalition party, direct party nominations and indirect party nominations. The definition of party primaries in the primary act has been deleted and replaced with party nominations. A statement of ideology is also defined.

Joining a political party

2.    The primary act provides for formation of political parties in section 3(2) which allows Kenyan citizens aged 18 years and above to form and register parties and to participate in party affairs and elections. The new section 3 (2A) now provides for joining of political parties as well. Kenyans aged at least 18 years and meeting the requirements including payment of any joining fees may join a political party.

Roles and Functions of Political Parties

3.    The amendment introduces a new Section 4.A which sets out the roles and functions of political parties as below:

a.    recruit and enlist members;

b.    nominate candidates for elections;

c.     promote representation in Parliament and county assemblies of women, persons with disabilities, youth, ethnic and other minorities and marginalised communities;

d.    sensitize the public on the functioning of the political and electoral system;

e.     promote and enhance national unity;

f.      mobilize citizens into participating in political decisions;

g.    solicit and articulate public policy priorities as identified by its members; and

h.    shape and influence public policy

Reservation of name, symbol or slogan

4.    The amendment introduces a new section 4.B which provides for an association to apply for reservation of a name, symbol or slogan. If the symbol, slogan or name is available, the registrar may reserve it for 90 days for the applicant after the application in writing. The registrar is required to notify the applicant in writing, of the availability of a name, symbol or slogan within 14 days of the application.

Provisional Registration

5.    Section 5 (5) is amended to extend the validity of a certificate of provisional registration to 270 days, which is an increase from the previous 180 days. Section 6 (2) is also amended to introduce the requirement of a statement of ideology of the proposed party to accompany the application for provisional registration.

Political Party Website

6.    An amendment to Section 7 (2) (f) of the primary act makes it MANDATORY for a political party to have an official website address of the political party. There are several other sections which make reference to the party website for reporting and publishing purposes. The official website address is now a prerequisite for registration.

Exemptions for Coalition Parties

7.    Further amendments to section 7 of the primary act have exempted coalition parties from the requirements of sections 5 and 6 of the Act which have laid down the processes and requirements for provisional registration. A coalition party will be issued with a certificate of registration upon deposition a coalition agreement with the registrar. A member of a coalition is prohibited from being a member of another coalition. That is, a party can NOT belong to more than one coalition.

Parties with Certain names, slogans not to be registered

8.    Section 8 prohibits registration of parties with certain names or slogans either because such names or slogans are obscene, offensive, already registered by another party or resemble those of another party in a manner likely to cause confusion. The amendment introduces two other instances where a slogan or name may not be registered, i.e., a) if it is similar to or associated with a group or association prescribed under any written law (for instance, you can’t register a party called “KDF”) or b) if the said name or slogan is against public interest.

Coalition Parties

9.     Amendment to section 9 of the primary act introduces the coalition party. A coalition party is defined as “a coalition that is registered by the Registrar as a political party”. It is important to note that parties may form a coalition as was before, or a coalition party, depending on their coalition agreement. Once a coalition agreement is deposited with the registrar, in the case of a coalition party, the registrar will issue a certificate of registration.

10. Section 9 (2) of the primary Act is amended to include the provisio that in the case of a Coalition Party, the Coalition Party shall submit the coalition agreement to the registrar at least 120 days before a general election. In the case of this general election, before 11^th April 2022.

Members Deemed to have resigned

11.  The amendment deletes the provisions of section 14 of the primary act about members deemed to have resigned from a political party if they promote the ideology of another party or advocate for registration of another party.

12.  Same provisions are reintroduced in the new section 14A but the section also provides for a member to be afforded the opportunity to be heard before being deemed to have resigned.

13. A new Section 14B provides for expulsion of a member from a political party if the said member contravenes the party’s constitution. Before expulsion, the member is to be afforded an opportunity to be heard in accordance with the internal mechanisms of the party.

Declaration of assets on Party Website

14.  Section 16 (4) of the act has been amended by requiring that the declaration of the party’s assets and liabilities be published on the party website as well as a newspaper of nationwide circulation. This declaration is to be made within 60 days after being issued with a certificate of full registration and is to disclose all contributions of founding members in the first year of registration.

Notifications of changes or alterations in constitution

15.  The notification of any alterations or changes in the party constitution or rules under section 20 of the primary act is now to be publicised in one newspaper of national circulation AND the official Party Website.

16.  Objections to such notifications or alterations are to be dealt with according to the party constitution. The registrar shall be informed of the manner in which such objections were dealt with and if satisfied, the registrar shall then proceed to register the changes.

Suspension and Deregistration

17.  Amendments to section 21 of the primary act introduce a novel aspect of suspension and make it the first punitive measure to be taken by the registrar against errant parties.

18. If a party contravenes article 91 of the Constitution of Kenya 2010, the said party is to be issued with a notice requiring it to redress the said contravention within a specified period of time but in any case, no more than 3 months.

19. Failure to comply with the said notice will lead to suspension for a period not exceeding 1 year. If after 1 year the contravention has not been redressed, the registrar shall proceed to deregister the party. The amendment deletes subsection 3 of section 21.

20.  As per the new section 21 (4A), party aggrieved by the registrar’s decision to suspend it may, within 30 days, apply to the registrar to review the decision to suspend it. a newly added subsection 7 of section 21 provides for parties to appeal further to the tribunal if still aggrieved by the decision of the registrar.

Elected Members of deregistered Party to remain in office

21.  A member of a deregistered party holding an elective position shall remain in office as a member of another party or as an independent under the new amendments to section 22 of the Political Parties Act.

Political Parties’ fund

22.  Section 24 regarding the political parties’ fund is amended to clarify that the said fund shall be zero-point three (0.3) percent of national governments share of revenue as divided in accordance with the annual division of revenue Act passed by parliament.

23.  Amendment to section 25 of the primary act has also lessened the stringent conditions required for a party to benefit from the fund. Previously, for a party to get a share of the fund, it needed to have twenty elected MPs, three elected senators, three elected governors and forty elected MCAs conjunctive. As per the new amendment, a party will benefit from the fund if it has either an elected MP, an elected senator, an elected Governor or an elected MCA. This means even one elected leader is sufficient to entitle a party to benefit from the fund, of course if the party meets the other requirements of gender representation and representation of special interest groups.

24. The formula for distribution of the political parties’ fund has now been adjusted to be as follows:

a.    seventy per cent of the Fund proportionately by reference to the total number of votes secured by each political party in the preceding general election;

b.    fifteen per cent of the Fund proportionately to political parties based on the number of candidates of the political party from special interest groups elected in the preceding general election;

c.     ten per cent of the Fund proportionately to political parties based on the total number of representatives from the political party elected in the preceding general election; and

d.    five per cent for the administration expenses of the Fund.

25.  A new subsection 1A is introduced to section 26 requiring monies allocated to coalition parties to be distributed as per the coalition agreement.

26. An amendment to section 26 (3) (a) now permits parties to pay election agents, persons contracted for purposes in furtherance of party objectives and employees from the party’s share of the fund.

Publication of source of funds on the Website

27.  Section 29 has been amended to require parties to publish their source of funds in one newspaper of nationwide circulation AND the party’s website.

Register of members and list of assets

28.  Section 30 as amended, now requires parties to submit to the registrar a register of members and a statement of assets and liabilities of the party at least 90 days before election as opposed to the 60 days previously provided. The new deadline is now before 11^th May 2022.

29. Section 31 (3) which required party accounts to be audited at least once a year has now been deleted.

Functions of the registrar

30.  Section 34 is amended to reflect more functions of the registrar including certifying that independent candidates are not members of a party and are not using symbols affiliated to a party. The registrar is also to certify that those appearing on a party list are actually the members of the party presenting the list. Importantly, the registrar has been empowered to regulate nominations in accordance with the act. On request and with financing from a requesting party, the registrar has been allowed to train the party agents.

Political Parties’ management information system

31. Section 34B is introduced, requiring the establishment of a political parties’ management information system which is to be used for processing of parties’ data and records.

32. Section 34 C, another new section, sets out the powers of the registrar to alter the records of political parties where such alteration is necessary such as on deregistration of a party, resignation or death of party members.

NOMINATIONS

A whole new Part (Part IV A) has been introduced to deal with party nominations. It spans from section 38A to section 38I, all newly introduced.

Methods of conducting nominations

33.  Section 38 A sets out the two methods of conducting party nominations, to wit, Direct Party Nominations and Indirect Party Nominations.

Party Structures

34.  38B requires a party to establish mechanisms for resolution of disputes arising from party nominations and to designate the person who shall issue certificates to candidates after party nominations. Additionally, a party is required to identify functions of the body within the party that is responsible for conducting nominations.

Rights of registered members to participate in nominations

35.  Under 38C, registered members of a party are entitled to participate in nominations carried by the party. A party intending to carry out nominations is required to use a certified register of members. The party is to apply in writing to the registrar for a certified copy of the register, at least 21 days before the date of nominations and the registrar is to supply the certified register within 7 days after the application. Non-party members are prohibited from participating in the nominations of a party.

Register to be accessible

36.  38 D provides that a party is obligated to ensure that the register of members to be used in nominations is accessible to the members.

Notifications with regard to Party nominations

37.  Under 38 E; at least 10 days before the date of a party’s nominations, the party is to notify the registrar in writing of:

a.    the method it intends to use in conducting party nominations, which method shall be in accordance with the nomination rules of the political party;

b.    the date of the party nominations;

c.     the venue or venues for the party nominations; and

d.    the list of members of the party who wish to be nominated by the party.

Publication of nomination dates on Website

38.  At least 7 days before the day of the nominations, the Party is to publish on its website the dates and venues of the party nominations. The registrar is also to publish the date and venues of a party’s nominations on the registrar’s website at least 7 days before the day of nominations.

Direct Nominations

39.  38 F provides for direct nominations, that is where the members of a party vote in the party nominations. Where a party intends to conduct direct nominations, it is obligated to post in a conspicuous place within each venue of nominations the certified list of members eligible to participate in nominations at that venue; provide ballot boxes, ballot papers, pens and copies of certified register of members; nomination result slips.

40. A party intending to conduct direct nominations is to submit to the registrar and publish on its website, the particulars of the body within the party that is to conduct the nominations and the procedure to be used in the direct nominations.

Indirect Party Nominations

41.  As provided for by Section 38 G, this is where a party through its delegates, selects candidates to award the nomination certificate to. A party intending to carry out indirect nominations is to:

a)    select delegates who shall participate in the party nominations from among the registered members of the party;

b)    submit the list of delegates to the Registrar at least seven days before the date of the party nominations;

c)    specify the date and venue of the delegates’ meeting;

d)   specify the polling process used by the delegates during the nominations;

e)    specify the mode of interviews; and

f)     specify the body within the party that shall conduct the interviews of potential candidates.

42.  The procedure for selection of delegates to participate in indirect nominations is to be provided for in the party nomination rules. The list of those delegates shall contain names, addresses and identifying particulars of the individual delegates.

Vetting of candidates

43.  A party conducting nominations is to ensure that each nominated candidate makes and deposits self-declaration forms under the Integrity and Leadership Act, meets all constitutional and statutory qualifications including education and chapter six qualifications and meets other requirements prescribed by law and nomination rules.

Resolution of nomination disputes

44.  Section 38-I requires parties to resolve disputes arising from nominations within 30 days after the nominations are conducted

Disputes Tribunal

45.  Amendment to section 39 of the primary act requires members of the tribunal to elect a vice-chair from among the members of the tribunal who are advocates of the high court.

46. A section 39A is introduced to provide for appointment of not more than 18 ad hoc members of the tribunal at least 6 months before election to serve for a term of 1 year. The ad hoc members are to serve alongside the other members of the tribunal and are to be responsible to the chair of the tribunal. (The Judicial Service Commission appoints)

47.  Section 41 has been amended to make the Court of Appeal the final resort with respect to appeals from decisions of the tribunal. The tribunal has also been given the powers of the High Court with regard to acts or omissions amounting to contempt.

48.  Section 45 has been amended to make it an offence to enlist a person to a political party without their consent.

49.  The second schedule is amended to include the official website among the contents of the party constitution and rules.

AMENDMENTS TO THE ELECTIONS ACT

50. Section 27 of the Elections Act which requires parties to submit their nomination rules to the commission at least 6 months before elections has been amended to require the registrar of political parties to certify those rules.

51.  Section 28 of the Elections Act is also amended requiring parties to submit to the registrar party membership lists at least 14 days before submitting the same to the commission.

52. Under the new section 28A of the Elections Act, the registrar is to verify and certify the party membership lists.

53. Section 35 A is introduced, requiring party lists to be certified by the registrar at least 14 days before being submitted to the commission.

The above are all the amendments covered by the Political Parties Amendment Act of 2022. I have curated below, a table of the important timelines according to the amendment.