Kenya: Political party registration
Updated July 2010
On the eve of the 2007 elections there were more than 300 political parties (though not all were registered with the Registrar of Societies at least 139, and possibly as many as 170, were); of these 117 nominated candidates for election to the National Assembly (Commonwealth Observation Mission 2008, 5). This proliferation of political parties was checked by enforcement of the Political Parties Act 2007, which reduced the number of registered parties to 47 by March 2010 (Registered political parties 2010). Parties that had previously been registered with the Registrar of Societies under the lenient regime of the Societies Act (Cap 108) were given 180 days to reregister (though some indulgence was provided for) in compliance with the Act, failing which they were deregistered (Political Parties Act 2007, 44).
The Act was not only far more demanding than the Societies Act in terms of initial registration criteria and requirements for continuation of registration, but also supplied the administrative machinery necessary to monitor and enforce compliance. The Political Parties Act 2007 mandated that registration of political parties be undertaken by the Registrar of Political Parties whose office falls under the Interim Independent Electoral Commission (IIEC; Political Parties Act 2007, 3, 4). So in June 2010, for instance, the Chair of the Interim Independent Electoral Commission was able to instruct that the Registrar to conduct an audit of the operations and finances of registered parties to ensure that they were in compliance with the Political Parties Act, warning that those that did not would be deregistered (Mosoku 2010). The importance of party registration lies in the fact that only political party candidates may stand for election: According to the Constitution (Article 34(d)) those seeking election to the National Assembly must be nominated by a political party, but according to the Political Parties Act 2007 (18(1)) without registration no association or organization may operate or function as a political party.
Conditions of registration
The Registrar may not register a party that demonstrates, through its structure and mode of operation, that it is not national in character and thus (Political Parties Act 2007, 14):
- is founded on an ethnic, age, tribal, racial, gender, regional, linguistic, corporatist, professional or religious basis or propagates these;
- uses language or images that could arouse ethnic, age, tribal, racial, gender, regional, linguistic, corporatist, professional or religious division;
- has a constitution or operational ethic that provides in any way for discriminatory practices contrary to the Constitution or law;
- accepts or advocates the use of force or violence as a means of attaining its political objectives;
- proposes to be active exclusively in one part of Kenya; or
- does not allow regular, periodic and open election of its office bearers.
An application for registration of a political party must include (Political Parties Act 2007, 18):
- the name of the party and, if desired, its abbreviation;
- a copy of its constitution
- the prescribed fee; and
- a request for the registration of the emblem of the party to be used on ballot papers.
The constitution of a party must include certain elements and may not be subsequently amended to drop any of them (Political Parties Act 2007, 19(1)). The Registrar was required to order parties that were already registered when the act came into force to amend their constitutions or rules to include these elements within three months of the issue of the order or suffer deregistration (Political Parties Act 2007, 19(2),(4)). These essential elements are found in the Schedule to the Political Parties Act 2007 and are listed in full at Matters to be included in a party constitution. The Registrar may refuse registration to a party that submits a name that is obscene or offensive, is excessively long, is the name or abbreviation of another registered party or resembles the name or abbreviation of another registered party (Political Parties Act 2007, 20). A party that has submitted an application is issued a certificate of provisional registration within 30 days of its application and it has a further 180 days to apply for full registration after which its provisional registration lapses (Political Parties Act 2007, 21). A provisionally registered party may not organise meeting and public activities during elections to campaign for any candidate, but it does have the right to (Political Parties Act 2007, 22):
- hold and address public meetings to publicise the party and recruit members;
- to the protection and assistance of the security forces to facilitate peaceful and orderly meetings; and
- to present the party's programmes to the public through equitable access to the State owned media.
Obtaining and maintaining full registration
A provisionally registered party qualifies for full registration if it has a minimal membership of two hundred voters registered for parliamentary elections in each province and has on its governing body a member from each province that is a resident or is registered to vote there (Political Parties Act 2007, 23(1)(a)-(c)). A list supplying the details of at least one founding member resident in each district must also be submitted to the Registrar that includes their names addresses and identification particulars (Political Parties Act 2007, 23(1)(d)). The party must further submit the exact location of its head office within Kenya and a postal address, as well as the exact location of its district offices if it has these (Political Parties Act 2007, 23(1)(e)). A party that has qualified is issued with a certificate of full registration and becomes legally a corporate body that may be sued or sue (Political Parties Act 2007, 23(3), 24(1)).
Within 60 days of registration a party must submit to the Registrar a declaration of assets, income and expenditure both real and projected, which information the registrar must publish in the Gazette and in one or more daily newspapers (Political Parties Act 2007, 24(2),(4)). Under exceptional circumstances section 40 allows publication in a single newspaper with national circulation). The penalty for failure to comply with this requirement, or for submitting false information, is deregistration (Political Parties Act 2007, 24(5)). Moreover, any amendments made subsequent to registration to a party's constitution or rules and regulations, or changes to the details of its office bearers or emblems, symbols or colours must be conveyed to the Registrar who must publish the change as above (Political Parties Act 2007, 25). Furthermore, parties are required to keep records at national and district levels that include a register of members, accounts of income of every kind, particulars of property and property acquisition, financial statements approved by the Registrar and whatever else the registrar may prescribe (Political Parties Act 2007, 35). The Registrar may request of a party office bearer that these records be made available for inspection or that any other information be supplied (Political Parties Act 2007, 36).
A parties may not only be deregistered by the Registrar if it is not national in character, as described in "Conditions of registration" above, or if it fails to supply the declaration of assets, income and expenditure as outlined in "Obtaining and maintaining full registration" above, but also if it is in breach of its own constitution, obtained registration by fraud, instigated or participated in the commission of an election offence or used money disbursed by the State improperly (Political Parties Act 2007, 26. For the details of improper use see section 30(2), which is discussed in "Public funding" in Political party finances). Further grounds for deregistration of a party include failure to obtain at least 5% of the vote in the two previous elections, or failure to participate in parliamentary or local government elections with its own candidates in the last six years or, following its registration, failure to participate in the next general elections (Political Parties Act 2007, 24(6), 26(2)(1)(e)). Before a party is deregistered the Registrar must inform the political party in writing of the intent and give the party 90 days to address the matter and comply with the Act (Political Parties Act 2007, 26(2). The Registrar may also cancel the registration of a party "which has been declared to be a prohibited organization under the provisions of any other law", in which case it is as if registration had never been granted in the first place (Political Parties Act 2007, 39).
Once a party has been deregistered no party activities may be engaged in or funds solicited (Political Parties Act 2007, 27). The Attorney-General must make an application to the High Court for the dissolution of the party, the disposition of its assets and the winding up of its rights and liabilities "and the High Court shall make such orders as appear to it to be just and equitable in the circumstances of the case" (Political Parties Act 2007, 42).
Appeals against the Registrar's decisions
Decisions made by the Registrar may be appealed against to the Political Parties Disputes Tribunal(Political Parties Act 2007, 5, 6). The decisions of the Tribunal must be rendered within three months of the lodging of a dispute and its rulings are final (Political Parties Act 2007, 7).
Above and beyond the sanction of deregistration, the Political Parties Act 2007 also prescribes penalties, for violation of its provisions that involve the knowing supply of false information, of 500 thousand shillings or imprisonment for up to two years or both (Political Parties Act 2007, 41(2),(3)). Liability for an offence committed by a party is extended to it officers, unless a person charged can prove that that the offence was committed by another without consent and that all diligence was exercised to prevent the offence (Political Parties Act 2007, 41(4)-(6)).
The law empowers the IIEC to issue regulations to execute the provisions of the Act (Political Parties Act 2007, 43). The Political Parties (Registration) Regulations of 2008 is an instance, which prescribe, amongst other things, the forms and certificates to be used in making provisional and full registration applications, changes to party particulars and the like as well as a schedule of fees levied for the registration process and other administrative requirements.
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COMMONWEALTH OBSERVATION MISSION 2008 Report of the Commonwealth Observer Group for the 2007 General Elections in Kenya, 17 January, [www] http://www.thecommonwealth.org/shared_asp_files/GFSR.asp?NodeID=174448 [PDF document, opens new window] (accessed 14 July 2010).
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