The Star of May 23rd told us thatthe IEBC wants to change the formula in the Political Parties Act (2011) for distribution of the political parties fund. The Act says that for the first elections under the Constitution the formula under the old (2007) Act is to be applied. This means that 15% is to be distributed equally among political parties, 80% on the basis of “the total number of votes secured at the last general election by each political party's presidential, parliamentary and civic candidates” (which must presumably now mean county assembly candidates), and 5% for the fund’s administration.
Next time the 15% equally distributed will disappear, and only parties getting 5% or more of the total votes will get any money.
Under the new Act, for future elections, there could be a genuine headache for the IEBC in the shape of the presidential election. Several parties shared a presidential candidate. It would be impossible for the IEBC to distribute money to the individual parties, without accepting certain, objectionable, “tyranny of numbers” types of argument on the lines of “30% of the X Alliance’s votes came from Y province, so they must really have been A Party supporters and not B Party’s”.
The old Act – applying to the recent election – says that if there is a joint presidential candidate, only the votes for the parliamentary and civic candidates of those parties are to be taken into account. So the headache is deferred.
Some parties did not support any presidential candidate; far more contested the other elections. But to include the votes cast in the presidential election would raise the total considerably, thus making it harder for smaller parties to win 5%, and would generally skew the calculations in favour of the big parties. So the IEBC should indeed get the Act amended, and, though the 2007 provision is better, best would be to disregard the Presidential election – or, as many countries do, have separate fund allocations for presidential elections.
It must be admitted that the new Act does not deal properly with the situation. And the IEBC (or its predecessor, IIEC) is to blame, as are the MPs who passed the Act, the parties that discussed it, the CIC and all of us who take it upon themselves to scrutinise new laws. All also failed to consider that for various reasons all the elections might not always be at the same time in future.
The Star report says that if the Commission does not succeed in getting the Act changed the Commission may go to court challenging the Act on the ground that distributing money on the basis of votes received rather than seats won “impedes democracy”.
Which basis for distributing the fund makes more democratic sense: seats or votes? Using seats benefits larger and better established parties. New parties may get support but may find it hard to translate that support into seats. And an issue based party (do we have any of these?), which appealed across the country, for example, a Green Party focussing on the environment, might get quite a lot of votes, but fewer seats than a party with the same number of votes but with a more local, and even ethnic, appeal. That is the consequence of the “winner takes all” system we have: concentrated support gets seats, the same support spread nationally may not.
What do other countries do? International IDEA (an intergovernmental body based in Stockholm) has a big database on party funding. Share of vote, number of seats, equal shares and even number of candidates fielded figure as criteria. Some countries use votes cast, but only for parties that won at least one seat. The US requires parties taking public funding not to seek private donations, while the UK publicly funds only parties not in government.
Using the number of votes each party has received as the basis is the most common rule, though in Africa votes cast and seats won are equally used as the basis for distribution. In fact equal shares for all registered parties is a slightly more common approach on the continent.
Countries with electoral systems like ours (that is single member constituency systems) are most relevant. Some countries with such electoral systems do use votes cast, including Australia, and Canada.
Quite a lot of countries use a combination of criteria: Uganda uses number of seats for regular funding and equal amounts for campaign funding. Tanzania allocates 50% on the basis of seats and 5% on the basis of votes, thus rewarding parties who strive for broad appeal and those that focus on winning seats.
It would be hard to convince a (wise) court to adjudicate on the democratic credentials of different systems. Kenya needs to consider the issues, with full, well-informed debate, with the public participation that the Constitution now requires in law-making. Too many shoddy, ill-thought-out laws, like this one, have been passed.
Before designing law its objective should be clear. What is the public funding supposed to achieve? Encouraging new parties or reinforcing old? Supporting simply electioneering or also other roles of political parties? Reducing the money element in politics? Levelling the playing fields? Encouraging inclusive politics? Encouraging policy-based politics?
What is the IEBC’s real problem? A commissioner said they were having “sleepless nights” reconciling the presidential and other elections. But they don’t have to – all they have to do is to calculate the total for the non-presidential elections. They have told us who won every election in every constituency, county and ward. In order to do that they had to have the figures. By now they could have added them up using pencil and paper, let alone the computers they spent so much money on.
This is surely something that the courts ought to be prepared to order to be released under the freedom of information. As the Constitution (Article 35) says, “Every citizen has the right of access to information held by the State” and “The State shall publish and publicise any important information affecting the nation.”
Kenyans will recall various rumours about the discrepancies between votes cast in the presidential elections and in the other elections. One commentator suggested a gap of 1.7 million. With 5 other elections apart from the presidential carried out on March 4, this would have meant about 8 million ballot papers distributed but not put in boxes. What happened to them, one wonders. Is this what the same anonymous commissioner meant by casting the IEBC in a “negative light” and those “sleepless nights”?
Should not the IEBC come clean?
Jill Cottrell Ghai is a co-director of Katiba Institute.
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