It does not.
The operating law is S.18(1) of the Election Campaign Finance Act. Let the law speak:
“The Commission SHALL, at least twelve months before the election, by Gazette Notice, prescribe spending limits that a candidate or party may spend…”
The operating word is “SHALL.”
Further, S.29 on delegated powers provides thus:
“The Commission MAY make regulations for the better performance of its functions, and such regulations shall be laid before the National Assembly for approval before they are published in the Gazette.”
In its characteristic and manipulative style to outmanoeuvre IEBC, Parliament is waving the sanctity of S.29 to defeat Election Campaign Spending Limits. There’s everything wrong with this, but let me highlight three.
The first problem is that Parliament is mistaken to think S.29 overrides S.12. Nothing can be further from the truth. S.29 is subordinate to S.12 and it says so in plain language by making the Regulations OPTIONAL. S. 12, on the other hand, is MANDATORY and self-executing.
The second problem is that Parliament is grossly dishonest in its contentions. At the very minimum, it is public knowledge that IEBC submitted the Regulations to Parliament in 2016, and Parliament deliberately sat on them to frustrate implementation.
The third problem is that Parliament conflates and confuses SPENDING LIMITS with CONTRIBUTION LIMITS. The 2016 Regulations do not prescribe spending limits. The furthest the Regulations go is to reproduce and require IEBC to publish spending limits pursuant to Section 18.
The Regulations do not, and cannot, predetermine or fix spending limits for the reason that indicators guiding IEBC in publishing spending limits have so many variables, and can only be determined on a case by case basis during each electoral cycle.
Differently put, the Regulations, even if approved, would have ZERO NET EFFECT on gazetted spending limits because there exist substantive provisions in Article 88(4)(i) of the Constitution and S.12 which expressly provide that IEBC “SHALL REGULATE” campaign spending.
The purpose of the Regulations, which Parliament has blatantly refused to approve since 2016, in a spectacular display of impunity, is to implement all other provisions of the Election Campaign Finance Act that are not self-executing, if at all.
As it is, Parliament’s limited intervention in matters of spending limits is to inquire whether there was PUBLIC PARTICIPATION preceding the gazettement of spending limits. IEBC would then answer whether it SOUGHT the input of political parties when developing the spending limits.
If IEBC sought the input of key players, then it shall have discharged its obligation whether or not feedback on the proposed spending limits was received or not. It would proceed to the gazette in full compliance with Article 88(4)(i) of the Constitution and S. 18 of the Act.
However, if Parliament or any person formed the OPINION that public participation was insufficient, then the aggrieved party would have recourse in the courts. Differently put, only the High Court has the power to stop enforcement of the Gazetted Spending Limits.
Not Bunge.
Steve Ogolla, Managing Partner, Saroni & Stevens Advocates. steveogolla@saronistevens.co.ke
