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Kenya: Church Statement on Elections
Kenya: Church Statement on Elections
Date distributed (ymd): 970609
Document reposted by APIC
This document was originally distributed on afjn-infoact by the Africa
Faith and Justice Network (AFJN), 401 Michigan Ave. NE, P.O. Box 29378,
Washington, D.C. 20017 Tel. 202 832 3412; Fax. 202 832 9051; Email: [email protected].
For information on subscribing to the afjn-infoact listserv, please write
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To: Members of AFJN Infoact
Date: June 4, 1997
Re: Statement of the Kenya Churches
The National Council of Churches of Kenya and the Kenya Catholic Episcopal
Conference have issued a public statement on the constitutional reforms
necessary for free and fair elections. The statement was issued after several
private visits by Church leaders to President Moi. The visits did not seem
to produce the desired results.
We believe the statement deserves our support. Two suggestions for action
are:
Write to Secretary of State Madeleine Albright; tell her that you support
the Churches' position on the reforms needed in Kenya before the general
elections and that you hope the U.S. policy towards Kenya is informed by
this statement
Write or call the Kenyan Ambassador; tell them you support the statement
of the Churches and that you have written to the State Department to ask
them to consider the statement when they are formulating U.S. policy towards
Kenya.
Addresses:
Hon. Madeleine Albright, Secretary of State, The State Department, 2201
C St. NW, Washington DC 20520, Phone: 202-647-5291, Fax: 202-647-1533
His Excellency Dr. Benjamin Kipkorir, Ambassador to the United States,
The Kenya Embassy, 2249 R St. NW, Washington DC 20008, Phone: 202-387-6101,
Fax: 202-462-3829
MINIMUM CONSTITUTIONAL, STATUTORY AND ADMINISTRATIVE REFORMS:
PREREQUISITES TO FREE,FAIR AND INFORMED GENERAL ELECTIONS
1. INTRODUCTION
The Christian Churches in Kenya have for more than ten years been heavily
involved in advocating for broad based reforms. Kenyans will recall many
statements issued by the Kenya Episcopal Conference (KEC) and the National
Council of Churches of Kenya (NCCK) and its members either jointly or individually.
The churches' involvement in the Reforms was intensified following the
President's promise to the Nation on 1st January 1995, that there would
be a major Constitutional Review. This was later revised on 10th October,
1996, to cover only statutory and policy reforms. Regrettably these promises
have not been honored.
Jointly and separately, privately and publicly, we have urged and petitioned
the Government at all levels possible. Unfortunately, our petitions and
pleas for minimum reforms before the 1997 General Elections have not been
taken seriously. The problem is not lack of time as is being argued. We
have in the past witnessed aspects of our Constitution amended by Parliament
in a matter of hours. What is lacking, we believe, is sufficient political
goodwill. This notwithstanding, our commitment to the proposed reforms
remains unchanged.
After much prayer, consultation and reflection, we find it necessary
to make public our joint position. In doing this we speak as shepherds.
We speak as leaders. We speak as people of goodwill. We speak as fellow
citizens, loyal to their homeland and bound to the tested and cherished
values of justice and peace. It is our firm conviction that the proposals
we make today are based on accepted universal principles of fair play,
and good governance. These principles include the doctrine of separation
of powers, the sovereignty of the voter, free and uninhibited access to
the ballot as well as freedom of association and assembly. It remains our
sincere hope that these recommendations will be considered and tabled before
the current Parliament is dissolved.
2. THE DOCTRINE OF SEPARATION OF POWERS
The doctrine of separation of powers is based on the constitutional
dictum that "one shall not be judge in ones own case" or that
"one must not be party, prosecutor and arbiter at the same time."
It is on this basis that the institution of government of the Republic
of Kenya is divided into three arms namely, the Executive, Judiciary and
Legislature. It is undesirable for any one arm to perform the functions
of another either directly or indirectly. In order to maintain this separation
of powers, each arm of government and its facets must be and remain completely
free and independent of the other(s).
a) The Electoral Commission:
The Electoral Commission established under Section 41 of the Constitution
is charged with the responsibility of registration of voters and maintenance
of the register of voters as well as the direction and supervision of Presidential,
National Assembly and Local government elections. We have stated in the
past that the current Electoral Commission appointed solely by the President
cannot be truly independent. It is important that the Commission is not
only independent but that it is seen to be so. We therefore recommend that
an independent, non partisan and inter-party Electoral Commission be established
with fair representation from the Government, the Opposition and organized
civil society. Nominees from each of these sectors should be appointed
by the President and the Commission should elect its own Chairman and other
officials. The Commission should further be granted its own independent
vote and financial resources charged from the Consolidated Fund. These
proposals will necessitate amendments to Section 41 of the Constitution.
b) The Preservation of Public Security Act (Cap 57):
Part II as read together with Part III of Cap 57 gives the President
power to among other things detain persons without trial, restrict the
movement of persons, control aliens, remove diplomatic privileges and censor
the media.
We have stated before that these provisions are subject to abuse by
the Executive arm of the Government especially in an election period. It
is important to note that the provisions aforesaid are currently in force
having been brought into operation to deal with the famine situation. We
recommend that this situation should cease since the famine has substantially
been dealt with. We also wish to restate that this part needs to be repealed
and replaced with appropriate provisions to deal with natural calamities
and disasters.
c) The Penal Code (Cap 63):
Section 56 and 57 of Cap 63 deal with seditious intention and publications.
These provisions are subject to abuse as they lend themselves to speculation
and conjecture. We recommend that these provisions be applied cautiously
and that 56 (1)(b) be repealed.
d) The Chief's Authority Act (Cap 128):
Cap 128 gives chiefs and their assistants immense powers with respect
to persons in their jurisdictions. Under the Act, a chief or an assistant
chief can make orders as far reaching as restriction of the freedom of
movement and association of their subjects. This is one of the most outdated
and abused laws in our Statute Books. We recommend that it be repealed
in its entirety.
e) The Public Collections Act (Cap 106):
The Public Collections Act provides for regulation of collection of
money and property from the public. It requires that all such collections
must be licensed by the provincial administration. This Act should be repealed.
It serves no purpose other than to corrupt the Harambee spirit, which as
Kenyans we have otherwise accepted and supported.
f) Offices of the Republic of Kenya:
Section 24 of the Constitution gives the President absolute powers with
respect to constitution and abolition of, appointment to and termination
of appointment from key public offices. The offices of the Attorney General,
Chief Justice, Head of Civil Service, Chief of General Staff, Commissioner
of Police, Members of the Public Service Commission and Judges would fall
under this category. In order to assure the independence of these offices,
we recommend that presidential appointments to and termination of appointment
from any of the offices be subjected to confirmation by 65 per cent of
the members of the National Assembly.
3. THE SOVEREIGNTY OF THE VOTER
In democratic elections, the voter's decision is sovereign and supreme.
All attempts to manipulate this decision must therefore be rejected in
order to ensure that the final composition of Parliament is truly the will
of the electorate.
a) The "25 per cent - 5 Province" Rule in Presidential
Elections:
We reiterate that the "25 per cent - 5 Province" rule as contained
in Section 5 of the Constitution undermines the "one person one vote"
constitutional rule since provinces do not have equal populations. The
rule therefore makes it possible for a candidate to be declared as elected
President with fewer votes than another who may have received more votes
from less, yet more populated provinces. We are recommending an amendment
to this rule to provide that in addition to the "25 per cent - 5 Province"
provision, a candidate must receive a minimum of 50 per cent of all the
valid votes cast in the election before he can be declared as elected president.
In the event of a re-run of presidential elections as anticipated by Section
5 (4) of the Constitution, we recommend that the winner be determined by
a simple majority only and that the functions of the office of the President
he performed by the Chief Justice during the intervening period. In addition,
the Government should ensure that all candidates and political parties
are allowed free and fair access to all parts of the country.
b) Independent Candidates:
The Constitution makes no recognition of independent candidates in an
election. This in effect means that unless one is nominated by a political
party, one cannot run for elections. We believe that independent candidates
can play a meaningful part in the political process. We recommend that
provision be made in the Constitution as well as the Local Government Act
(Cap 265) for candidates not affiliated to any political party to run for
presidential, parliamentary and civic elections.
c) Nominated Members of Parliament:
Section 33 of the Constitution gives the President absolute powers to
nominate twelve (12) Members of Parliament. We reiterate that this provision
is open to abuse and may be used to solidify electoral majority of the
party in power. Again it interferes with the electorate's power to choose
their representatives in Parliament. Indeed we have witnessed instances
where candidates rejected by the electorate are nominated into Parliament
and even appointed to the Cabinet. We recommend that nominated Members
of Parliament be appointed from special interest groups that are unrepresented
or under-represented through the election subject to ratification by a
majority of 65 per cent of the elected Members of Parliament.
4. FREEDOM OF ASSEMBLY AND ASSOCIATION
The freedoms of assembly and association are guaranteed by Section 70
of the Constitution. No law or regulation should therefore be applied in
a manner that undermines these fundamental freedoms.
a) The Public Order Act (Cap 56):
The Public Order Act deals mainly, with control of public gatherings.
This Act severely restrains the freedoms of association, assembly and expression
of the people. We therefore recommend that Part III of Cap 56 as far as
it relates to control of public gatherings be amended to require only that
organizers of public gatherings notify the Police Officer commanding the
relevant division within reasonable time for purposes of provision of security.
b) Coalition Government:
Section 7 of the Constitution provides that "A person elected president
in accordance with this Constitution shall assume office as president as
soon as he is declared to be elected and shall form the Government of the
political party which nominated him as a candidate for president".
This provision is ambiguous in relation to the formation of a coalition
government. We have stated elsewhere that democracy allows individuals
and groups to associate freely. Again, if the winning party in an election
has a small majority, it can only realistically be made stronger by the
establishment of a coalition government. Moreover a president should have
the constitutional mandate to appoint ministers and assistant ministers
from among the entire membership of the National Assembly irrespective
of party affiliations. We therefore recommend that the Constitution be
amended to provide for a coalition government so as to provide for a stable
government of national unity catering for the broad interests of all sectors
of society.
5. FREE AND INFORMED ACCESS TO THE BALLOT
No election can be free and fair if the electorate or the candidates
are not allowed equal and unhindered access to the ballot. This principle
extends to the electioneering period:
a) Voter Registration:
We acknowledge that not every citizen who has applied for the second
generation National Identity Card has been issued with one. We are sad
to note that after endless dithering and equivocating by those in authority,
this matter is still unresolved. We strongly suggest that Identity Cards
(old and new), Passports, Driving Licenses and Birth Certificates, be considered
valid for purposes of voter registration. In any event, an Identity Card
is not a requirement of the law in voter registration. The registration
of persons should therefor e be de-linked from the voter registration exercise.
While we urge all eligible citizens to register as voters, we hasten
to add that the period set aside by the Electoral Commission for the exercise
is not adequate. This, coupled with logistical and administrative mishaps
now being witnessed across the country, requires that the period be extended.
Every Kenyan over 18 years must be given equal opportunity to register
as a voter. The Government should provide adequate security to the victims
of clashes so as to return to their farms and register as voters.
b) Ballot Papers/Boxes:
Electoral malpractices normally occur when and where candidates have
no control over ballot paper/boxes, and where the counting of votes does
not occur at the polling station.
All registered political parties which intend to field candidates for
election should participate in the printing, custody and transportation
of ballot papers/boxes under the supervision of the Electoral Commission.
Ballot papers must be counted at the polling stations and the results announced
immediately on the spot. The results must then be delivered to the central
counting center.
We recommend that ballot boxes be transparent. We also recommend that
Regulations 34(3) and 36(5) of the Presidential and Parliamentary Elections
Act be amended to cater for the above needs. Once these amendments are
carried out, we do not anticipate any involvement of the provincial administration
or the police in the voting process except for the provision of order and
security.
c) The Mass Media:
The mass media is a very powerful educational and electioneering tool.
All sectors of the Kenyan society must have equal access to the public
media. Public media is sustained by tax payers money and should not therefore
be monopolized by any political party or individual. The Government should
further open up the air waves for investment by citizens.
d) Civic and Voter Education:
Civic and voter education is primarily the responsibility of the Government.
In order to ensure that the voter makes informed decisions in the 1997
elections, the Government must take up this responsibility as well as enlist
the assistance of civic education groups in this regard. We recommend full
utilization of the mass media in this regard.
e) Financing Election Campaigns:
Elections lose meaning as an expression of people's democratic will
and their right to electoral choice when issue-oriented voting is replaced
by manipulated voting. Equality of and transparency in campaign finances
and other resources is essential among candidates and political parties.
The party in power must not use public resources for its own campaign.
This gives it unfair advantage over the opposition. The Exchequer should
make a contribution to the campaigns of each political party and presidential
candidate's campaign. Any financial and other resource contribution must
be declared or reported. A Government contribution to the campaign resources
of all registered political parties and presidential candidates should
be managed by a competent and properly mandated Electoral Commission.
f) The Societies Act (Cap 108):
Political parties are currently registered under the Societies Act which
deals with the registration and control of societies generally. It is public
knowledge that there are a number of political parties whose applications
for registration are still pending. We recommend that Section 4 of Cap
108 be amended to provide that every society is a lawful society unless:
(i) it is formed for an unlawful purpose or (ii) the Minister has obtained
an order from the High Court declaring it to be a society dangerous to
the good governance of the Republic or (iii) the Registrar has notified
the society after it has made the application that he intends to reject
the registration or exemption from registration in one of the grounds specified
in section (II) (1) and ( 2 ) of the Act.
g) Resettlement of Victims of Ethnic Violence:
We are aware that many of the victims of violence in the Rift Valley,
Western, Nyanza and Coast provinces are yet to be resettled. We are asking
the Government to assure Kenyans that the exercise of re-settlement shall
be completed in time for the victims to participate in the actual voting.
h) Security:
The persistent state of insecurity in our country has caused us considerable
disquiet. The ongoing problems in West Pokot, Marakwet, Turkana, Isiolo,
Samburu and Marsabit, among other places, should be effectively addressed.
As we approach the elections, we are equally concerned about the security
of all presidential, parliamentary and civic candidates.
We also recommend that the period for presentation of nomination papers
be adjusted to 8.00 a.m. to 5.00 p.m. in order to avoid unnecessary barring
of candidates on grounds of technicalities.
6. CONCLUSION
Yet again, we appeal to the Government to make urgent arrangements so
as to facilitate these reforms before the next General Elections. Without
them, our vision of free, fair and informed elections will be significantly
compromised.
We therefore take this opportunity to call on all our people to join
in ecumenical prayers for reforms, for peace and fairness during this election
year.
...
Rev. Mutava Musyimi, General Secretary, National Council of Churches
of Kenya, Church House, Moi Avenue, P.O. Box 45009, Nairobi, KENYA Tel
338211 Fax 224463 Telex 22636 Cable OIKUMENE
Rt. Rev. John Njue, Chairman, Kenya Episcopal Conference, Catholic Secretariat,
Waumini House Westlands, P.O. Box 48062, Nairobi. KENYA Tel 443133/4/5,
443906, 443917 Fax 442910
Signed this 22nd day of May, 1997 Ufungamano House, Nairobi.
This material is being reposted for wider distribution by the Africa
Policy Information Center (APIC), the educational affiliate of the Washington
Office on Africa. APIC's primary objective is to widen the policy debate
in the United States around African issues and the U.S. role in Africa,
by concentrating on providing accessible policy-relevant information and
analysis usable by a wide range of groups and individuals.
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