MANAGING THE ELECTORAL PROCESS IN THE IMPLEMENTATION OF THE CONSTITUTION

1. DIASPORA- UK CONFERENCE IN LONDON 28TH JULY 2012 CHURCH HOUSE CONFERENCE CENTER, LONDONTheme: Leveraging Diaspora Participation In National Development MANAGING THE ELECTORAL PROCESS IN THE IMPLEMENTATION OF THE CONSTITUTION PRESENTED BY: AHMED ISSACK HASSAN, EBS IEBC CHAIRPERSON

2. ORDER OF PRESENTATION Introduction Thematic areas/ mandate Policy on Voting rights of citizens residing outside Kenya, for the first general election under the constitution of Kenya Challenges Gaps Role of Diaspora in national development Conclusion Independent Electoral and Boundaries Commission 2

3. A. INTRODUCTION: IEBC MANDATE, Articles 88 and 89 of the Constitution The duty on every one and all institutions IEBC no exception, to implement the Constitution should witness the values and principles embodied in Articles 10 and 232 of the same given effect. These values and principles apply to public service in all State organs in both levels of government and to all State corporations IEBC included. The role of the IEBC in constitution implementation process is by and large envisaged in its mandate to:- Independent Electoral and Boundaries Commission 3

4. Introduction cont….) the continuous registration of citizens as voters; the regular revision of the voters’ roll; the delimitation of constituencies and wards; the regulation of the process by which parties nominate candidates for elections; the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results; the registration of candidates for election; voter education; Independent Electoral and Boundaries Commission 4

5. INTRODUCTION Cont… the facilitation of the observation, monitoring and evaluation of elections; the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election; the development of a code of conduct for candidates and parties contesting elections; and the monitoring of compliance with the legislation required by Article 82 (1)(b) relating to nomination of candidates by parties. Independent Electoral and Boundaries Commission 5

6. Additional Mandate, Section 4 of IEBC Act, 2011 the investigation and prosecution of electoral offences by candidates, political parties or their agents pursuant to Article 157(12) of the Constitution; the use of appropriate technology and approaches in the performance of its functions; and such other functions as are provided for by the Constitution or any other written law. Independent Electoral and Boundaries Commission 6

7. B. THEMATIC AREAS: 1. DELIMITATION OF ELECTORAL UNITS – Article 89 The Commission gazetted Final Report of Boundaries of Constituencies and County Assembly Wards on 7th March 2012 136 Constitutional Petitions and Judicial Review Applications were filed at the High Court The Petitions and Applications were to be heard and determined within 3 months. The ruling was delivered on 9th July 2012, generally upholding Commission decision Other than the areas where the Court issued specific orders on, the boundaries specified in the Final Report were effective on the date of publication Independent Electoral and Boundaries Commission 7

8. DELIMITATION OF ELECTORAL UNITS – Article 89 (Cont’d) Fifth Schedule of IEBC Act, 2011 guided the completion of the “First Review” • The Court has upheld the decision of the Commission on the Delimitation of Boundaries • On a few cases, it made specific orders for the Commission to review boundaries of County Assembly Wards (CAWs) across Constituencies and/or naming of some CAWs The Commission to publish the electoral boundaries for constituencies and CAWs as amended by the court in the print media.  Independent Electoral and Boundaries Commission 8

9. 2. REGULAR REVISION OF VOTERS ROLL, REGISTRATION OF CANDIDATES FOR ELECTION – Article 88 After the final boundaries have been determined by the court, the Commission will undertake the following – • Mapping of existing polling stations • Reconfiguration of new polling stations according to the Court Orders • Coding of new polling stations • The new boundaries will form the basis of fresh voter registration exercise • Fresh voter registration - Subsequently, there will be regular revision of the Voters Roll Independent Electoral and Boundaries Commission 9

10. REGULAR REVISION OF VOTERS ROLL, REGISTRATION OF CANDIDATES FOR ELECTION – Article 88 (Cont’) Fresh Voter Registration to commence in Aug 2012 • Policy to rollout Biometrics Voter Registration countrywide • 9750 Kits to be procured • Procurement Process almost complete • The 12.4 million voters registered for the constitutional referendum will be required to re-register afresh within the new electoral units and using biometrics features Independent Electoral and Boundaries Commission 10

11. 2. DEVELOPMENT OF LEGISLATIONS REGULATING THE PROCESS BY WHICH PARTIES NOMINATE CANDIDATES FOR ELECTIONS– Article 88 Legal Framework for the Regulation of nomination process- • Political Parties Act, 2011 – • Code of Conduct for Political Parties (First Schedule of PPA) • Constitutions of Political Parties (Second Schedule provides a template of the content) • Parties that do not promote free and fair nomination process of candidates or do not adhere to laws relating to this process risk deregistration • Electoral Code of Conduct – has the force of law • Regulations under both Acts • Leadership & Integrity legislation Independent Electoral and Boundaries Commission 11

12. DEVELOPMENT OF LEGISLATIONS REGULATING THE PROCESS BY WHICH PARTIES NOMINATE CANDIDATES FOR ELECTIONS– Article 88 • Elections Act, 2011 – • Provides that political parties shall nominate their candidates according to the party’s nomination rules (as submitted to the RPP) • Guides the time limit within which party nominations are to be done; at least 45 days before elections • The party nomination process is to be guided by rules that parties are to submit at least 3 months before elections (recent amendments) • Provides minimum qualifications for nomination of candidates; educational, leadership & integrity, e.t.c • Party Lists – provides the manner of nominating and allocating special seats (women, youth, PWDs, workers, minorities, marginalized) Independent Electoral and Boundaries Commission 12

13. 3. SETTLEMENT OF ELECTORAL DISPUTES – Article 88 Settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results • Institutional Mechanisms - • Political Parties Dispute Resolution Tribunal • Electoral Code of Conduct Enforcement & Compliance Committee – to monitor and enforce compliance with the Electoral Code of Conduct • Dispute Resolution Committee • Political Parties Liaison Committees – National and County • Conflict Management Panels – Constituencies • Peace Committees – Constituencies • Investigation & Prosecution Unit – to work with ODPP Independent Electoral and Boundaries Commission 13

14. SETTLEMENT OF ELECTORAL DISPUTES – Article 88 (Cont’d) Regulatory Framework • Legislative Framework; Constitution, Elections Act, Political Parties Act, Electoral Code of Conduct, Regulations under both Acts • Administrative mechanisms – • Early Warning Tool on impending conflict/violence • Conflict management panel during nomination process • Structured engagements with key stakeholders to address issues of concern • Guidelines IEBC works closely with key stakeholders (state & non-state) on dispute resolution mechanisms Independent Electoral and Boundaries Commission 14

15. 4. CIVIC EDUCATION- Article 88 Voter education framework in the country – • Voter Education Curriculum/Manuals/Handbook – this will guarantee uniform messaging, quality of voter education and voter-friendly content with illustrative guide Voter Education Providers – • Engagement of CBOs/FBOs and organizations/firms that work in civic/voter education: • Selection is based on an objective criterion • Recruitment from every constituency • Process of accreditation of voter education providers ongoing Independent Electoral and Boundaries Commission 15

16. CIVIC/VOTER EDUCATION – Article 88 (Cont’d) Commission working closely with other agencies, both state and non-state actors – • KNICE, Uraia, Amkeni, etc Adopting a multi-pronged approach – • Media - radio, TV, social network • Face-to-face interactions through IEBC officials and/or voter educators • Tapping into school system – KIE, KSHS Bi-monthly national stakeholder engagements with civil society organizations, media, political parties, etc • To cascade to constituencies Independent Electoral and Boundaries Commission 16

17. 5. FACILITATION OF THE OBSERVATION, MONITORING AND EVALUATION OF ELECTIONS – Article 88 Election Observation • Guidelines on Election Observation (domestic & foreign observers) • Procedures for Accreditation of Observations – short & long-term observers • Working closely with domestic observer groups – ELOG • Training of Observers (starting with long-term observers) – advert to apply for long-term observers (in the papers today) Independent Electoral and Boundaries Commission 17

18. FACILITATION OF THE OBSERVATION, MONITORING AND EVALUATION OF ELECTIONS – Article 88 (Cont’d) Election Monitoring & Evaluation • Monitored and evaluated of all by-elections and the constitutional referendum – Reports inform subsequent Commission processes • Researches conducted to support the election processes - • Research on voter education needs – inform voter education strategies • Automation of electoral process – enhance efficiency of processes • Diaspora registration and voting – data informs Commission policies and decisions • Regular monitoring & evolution of IEBC Strategic Plan – calls for review of strategies based on dynamics and changing circumstances • Special voting – pastoralists, women in difficult circumstances, PWDs, sick, prisoners Independent Electoral and Boundaries Commission 18

19. 6. REGULATION OF CAMPAIGN FINANCES – Article 88 Draft Election Campaign Financing Bill, 2012 • Developed through a consultative process with all key stakeholders in elections • Aimed at regulating sources of campaign funds contributed to candidates and political parties, set limits to these contributions to create a level-playing field and provides for accountability in expenditure through disclosure requirements and reporting to the Commission. Sanctions include fines and barring candidates/parties from contesting • Bill now with CIC • IEBC to publish a Gazette Notice with the spending limits once the law is enacted (through a consultative process) Independent Electoral and Boundaries Commission 19

20. 8. MONITORING COMPLIANCE OF CODE OF CONDUCT – Article 88 In addition to the Constitution and the Elections and Political Parties Acts, the Electoral Codes of Conduct under both Acts have the force of law – • IEBC has set up an Electoral Code of Conduct Enforcement Committee • Continuous monitoring by Commission through RECs, CECs and other agencies partnering with the Commission • Structured engagements through PPLCs to enhance compliance with the law (national and county levels) Independent Electoral and Boundaries Commission 20

21. 10. INVESTIGATION & PROSECUTION OF OFFENCES – S. 4, IEBC Act, 2011 Investigation & Prosecution Unit – • Recruitment of Investigators & Prosecutors • Training of Investigators & Prosecutors • Working closely with DPP and other relevant agencies in investigations and prosecutions of electoral offences Independent Electoral and Boundaries Commission 21

22. 11. USE OF ICT AND APPROPRIATE TECHNOLOGIES IN ELECTIONS – S. 4, IEBC Act, 2011 Electronic Transmission of Results • From County Assembly Ward, Constituency and Counties to National Tallying Centre • Counting and Declaration to follow predetermined sequence • Key stakeholders will be involved in testing the results transmission system and their feedback will be considered before rolling out the system • Signal feed to media houses to relay results as they become available • Results will be displayed publicly at constituency, county and national tallying centers • Electronic transmission system will give regular updates on voter turn out • Provisional results will also be posted on the Commission website (www.iebc.or.ke) in real time Independent Electoral and Boundaries Commission 22

23. C. Policy on Voting Rights of Citizens Residing Outside Kenya, for the first general election under the Constitution of Kenya Commission has developed and Adopted a policy creating a framework through which the realization of progressive voter registration and voting for citizens residing outside the country will be coordinated. [Article 82(1)(e)] to determine criteria for achieving external voting rights i.e. development of laws regulating such voting to provide for the external voter registration process to provide for the mode of external voting process To provide for the types of elections (in this case resolved to be the Presidential Election only) and proposed Countries to provide for inter agencies collaboration on external voting rights Independent Electoral and Boundaries Commission 23

24. D. CHALLENGES OF IEBC IN IMPLEMENTING MANDATE High public expectations – ECK, IIEC, IEBC to raise the bar higher Time constraints – Timely conclusion of boundaries cases which should inform voter registration and mapping of polling stations Low public awareness on the new constitutional dispensation Gaps in the Constitution and legislative framework – two-third gender threshold Insecurity threats; on voters, election officials and materials (MRC, Al-Shabaab, etc) Low political will by political leaders Independent Electoral and Boundaries Commission 24

25. CHALLENGES OF IEBC IN IMPLEMENTING MANDATE (conti….) Host country issues: security, stability and sovereignty concerns are factors that have made governments shy away from endorsing other countries electoral activities on their soil: other issues include: customs clearance for election materials entering the host country for the purpose of registration and voting permits and other travel documents waiving any taxes or other fees points of contacts in relevant government offices to facilitate needs above Independent Electoral and Boundaries Commission 25

26. CHALLENGES (Cont’d) Political impunity – e.g. voter bribery, intimidation Dealing with the effects of ‘party hopping’ and how to effect the ‘deeming’ provision Vetting – • Vetting and clearance of potential candidates – Leadership & Integrity Bill, 2012 • Vetting of supporters to all 6 elective positions – overwhelming numbers (supporters of party candidates and supporters of independent candidates) Liaison between the Commission and the Office of the RPP being an independent state office under the Political Parties Act Completion of boundaries cases: Commission has so far been served with 6 appeal notices Resource constraints; human and financial Independent Electoral and Boundaries Commission 26

27. E. THE GAPS Legal Framework • Attainment of the two-third gender threshold in elective positions (Failure to meet the threshold shall give rise to a constitutional crisis; membership of legislatures ought to have at least one-third of either gender) • No clear mechanisms to address disputes arising between the 2nd & 3rd presidential candidates in the first round, time period too short (run-off to be held within 30 days of the first round) • Campaign Financing Bill intended to regulate campaign expenditures by candidates and parties still not in place • No clear mechanisms on how to operationalize the ‘deeming’ provision with regard to party hopping and who bears this responsibility • Uncertainty on responsibility to vet candidates for elections: this is a subject of the legislation on leadership & Integrity Independent Electoral and Boundaries Commission 27

28. THE GAPS (Cont’d) • Subsidiary legislation in final stages of consultations and drafting Technical Expertise & Capacity Building • Training of Investigators & Prosecutors • Training of Peace Committees • Training of Political Parties, candidates, observers (long-term) • Managing the regulation of campaign expenditure committees (under the Draft Election Campaign Financing Bill, 2012) Independent Electoral and Boundaries Commission 28

29. F. Role of Diaspora in National Development People in the Diaspora may be particularly influential through:- Mediating in implementing transitional elections remittances in well administrative structures and mechanisms of the Government to tap (leverage) directly to the foreign inflows. promoting consensus between political players and involvement in domestic politics of major donor countries take an active role in legal institutional and administrative reforms of the country, promote compliance with the law and uphold the rule of law at all times Independent Electoral and Boundaries Commission 29

30. G. CONCLUSION Commission to work within budget constraints Seek for additional support from partners in implementing mandate – • Voter Education – Media, publicity, IEC/Voter Education Materials & in community mobilization • Training & Capacity Building – Investigator & Prosecutors, Peace Committees, Political Parties • Technical Support Work closely with relevant state and non-state agencies towards peaceful elections – • Security: Office of the President/Ministry of Internal Security, NCIC, KNHRC, Observer groups, etc • Effective election operations – registration of persons, Diaspora, etc: Ministries of Immigration, Foreign Affairs, • Effective legal framework: State Law Office, KLRC, National Assembly and key stakeholders in elections Lobby for political goodwill in the process Independent Electoral and Boundaries Commission 30

31. Independent Electoral and Boundaries Commission Address: University Way, Anniversary Towers, 6th Floor P.O Box 45371 - 00100, Nairobi, Kenya. Phone: (254) 020 2769000, fax: (254) 020 2219185 Email: info@iebc.or.ke, website: www.iebc.or.ke Thank You