PARTICIPATION AND INCLUSION OF SPECIAL INTEREST GROUPS IN THE ELECTORAL PROCESS

PRESS STATEMENT-JULY 28, 2017

PARTICIPATION AND INCLUSION OF SPECIAL INTEREST GROUPS IN THE ELECTORAL PROCESS

Members of the fourth estate

Welcome to the National Gender and Equality Press Briefing

The Commission is keenly monitoring political activities ahead of the August 8, General Elections which are just 10 days away by evaluating the integration of principles of equality and inclusion in existing electoral laws, policies, rules and regulations as well as the application of affirmative action measures to ensure the full participation and inclusion of special interest groups in the entire electoral process.

This is informed by our mandate to promote gender equality and freedom from discrimination, in line with Article 27 of the Constitution with a special focus on special interest groups: women, children, youth, older members of the society, persons with disabilities (PWDs), minorities and marginalized groups and communities in all spheres of life.

We have called you here today to pronounce ourselves on the matter of electoral preparedness and the extent to which the principles of equality and inclusion are being mainstreamed in the entire electoral process. We wish to specifically address the matter on submission of political parties’ nomination lists to the Independent Electoral and Boundaries Commission (IEBC).

Political Parties Lists

We wish to draw attention to  the provisions of Article 90 of the Constitution of Kenya 2010 regarding the election for the seats in parliament provided for under article 97(1) (c) and 98 (1) (b), (c)  and (d) for the members of county assemblies under article 177 (1) (b) and (c).

As you are aware, each political party participating in the August 8, 2017 General elections either at National Assembly, Senate or County Assemblies is required to nominate and submit a list of all persons who would stand elected if the party were to be entitled to seats provided under Article 90 within the time prescribed by national legislation.

The deadline for submission of the party lists was Saturday June 24, 2017. Instructively, political parties were expected to comply with Article 90 of the Constitution of Kenya 2010, the Elections Act and the recent party primaries and party lists regulations published by IEBC in submitting names of members who would qualify for nominations in the National Assembly, Senate and County Assemblies to represent special interest groups.

By law, the special seats are reserved for the Special Interest Groups and only bonafide members should be nominated

On the other hand, the IEBC was required to review the party lists to ensure compliance with the law and either issue a certificate of compliance or require non-compliant parties to amend the lists as per its directions. The NGEC has had constant engagements with IEBC who have informed us none of the 56 political parties who submitted party lists complied with the various requirements of the law.

As such, all parties were required to re-submit amended lists. It would appear political parties took this opportunity not only to review the lists as per the directions of IEBC but also to rearrange names in those lists without justification in our view. This issue of revised lists has resulted to numerous complaints filed by Special Interest Groups (SIGs) at the Political Parties’ Dispute Tribunal.

We have made the following observations:-

1. Location of the hearings

The notice published by IEBC on Friday 21st, 2017 indicates that complaints to IEBC shall be filed at the Legal Registry, 7th Floor Anniversary Towers while those to be lodged with the Political Parties Disputes Tribunal (PPDT) shall be filed at the PPDT registry at the High Court Building in Nairobi (Milimani Law Courts)

Timelines for hearing and determination of complaints arising from the published party lists

According to the Notice, complaints were to be filed from Friday 21st July, 2017 to Sunday, 23rd July, 2017. The finalization of hearing was set for Friday, 28th July, 2017.

Formula for picking senate candidates for youth and Persons with Disabilities.

Most parties have prioritized men in the Senate lists for youth and PWDs

Failure to submit full lists.

Section 36(1)(f) of the Elections Act provides that party lists under Article 177(1)(c) shall have 8 names. Section 36(3) provides that the lists for 36(1)(f) shall prioritize PWD, youth marginalised group in that order.

We note that this provision has not been strictly complied with in the Marginalised Lists for the counties by all parties contrary to the law which contemplates that of the 4 nominated members of a county assembly to represent marginalised groups, the first must be a PWD, then a youth and 2 others representing an ethic minority or marginalised group in that county.

Dominant tribes/ethnic community in the counties being given priority.

In counties with dominant ethnic communities, we still have members of the same communities in the marginalized list indicated as ‘marginalized’. The question is, on what basis are they marginalized?

What criteria will the IEBC use to establish who qualifies under the marginalized category?

1. Across the board, Persons with Disability are not being prioritized in marginalized lists contrary to section 36(3) of the Elections. Majority of the lists have put them below number 4 limiting the probability of being nominated.

We have held consultations with the IEBC on these issues and wish to State as follows:-

1. The distance and location of hearing the complains is prohibitive for complainants across the 47 counties. Majority of the complainants have had to make arrangements for follow up on the complaints. Travel and accommodation which is an expense to them.  These categories are already vulnerable. Majority of the complainants may fail to pursue their complaints because of logistical challenges.
2. The publication of lists was placed on the IEBC website on Friday, 23rd July and not in the Newspapers easily accessible for all Kenyans. Website publication of the lists could not reach all possible complainants considering internet is not available in all parts of the country. IEBC published the lists in the Newspapers on Sunday, 23rd July, 2017. For those that saw the lists on Sunday had only a few hours to file their complaints which is unrealistic. We have been monitoring the filing and hearing of the complaints at the IEBC and PPDT. As at Sunday, about 100 complaints had been filed with the PPDT. Despite the notice giving the Sunday deadline the PPDT has not turned away complainants and as at Wednesday 26th July, 2017, about 700 complaints have been filed. We commend the PPDT for admitting complaints beyond the Notice published. However, we note that PPDT faces the following challenges;

1. They don’t have courtrooms to hear the complaints and have to wait for the mainstream courts to adjourn. As such matters are mostly being heard in the afternoon to the night.
2. The complaints are overwhelming for the 2 panels formed by the PPDT. Is it possible to conclusively hear and determine 200+ matters in 10 days?
3. So far most matters have only been mentioned to confirm if complainants have served the respondents. Those that have been served and appeared before the tribunal were not ready understandably because of the short notice. With the time left, will it be possible to conclude?
4. The Chief Justice should step in and provide full time court rooms for the PPDT to speedily resolve the disputes.

1. The allocation of seats by political parties is flawed

If the lists submitted to IEBC by political parties are admitted as they are, there is likelihood that two members of the same gender will be nominated thereby offending the principle of gender balance. We therefore request IEBC to devise an objective criteria acceptable to all parties in deciding how the nominees will be picked.

1. Incomplete party lists

Failure to submit full lists means that the party will not be considered in the allocation in line with regulation 26 (4) of the Elections (Party Primaries and Party Lists) Regulations, 2017 which provides; In the event that a political party fails to resubmit the party list or a name on the party list after it has been rejected under subregulation (1), the party shall not be considered in the allocation of seats. This means that SIGs will not be represented in parliament or county assemblies contrary to the law because of the failure by political parties to comply.

1. Any candidate in the elections should not be on the party lists.

NGEC will keenly monitor this to ensure such individuals if any, are disqualified in line with section 34(9) of the Elections Act.

We have sought the assurance of the IEBC that the issues raised will be exhaustively dealt with. We shall not hesitate to take appropriate measures to ensure Special Interest Groups participate fully in the 2017 electoral process.

SIGNED

WINFRED O.LICHUMA EBS

CHAIRPERSON