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This document is from the archive of the Africa Policy E-Journal, published by the Africa Policy Information Center (APIC) from 1995 to 2001 and by Africa Action from 2001 to 2003. APIC was merged into Africa Action in 2001. Please note that many outdated links in this archived document may not work.

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: afjn@igc.org. For information on subscribing to the afjn-infoact listserv, please write to afjn@igc.org, or send the message "help" to majordomo@igc.org.

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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