CENTRE FOR MULTIPARTY DEMOCRACY KENYA Response to Campaign Finance Bill 2011 Introduction 1. The Centre for Multi-party Democracy Kenya (CMD-Kenya) welcome this opportunity to influence and shape the future of campaign and political financing by responding to the initial draft Campaign Financing Bill 2011, dated 18 November 2011. The draft bill presages radical changes to campaign and political financing practices in Kenya. 2. CMD-Kenya is consistent in its support for reforms that strengthen multi-party democracy. We share the view that democracy requires strong party organizations that compete for political power in fair elections and to keep the system functioning, political parties and individual candidates must have the resources to run successful campaigns. 3. CMD-Kenya will be a constructive partner in supporting and promoting the changes that is proposed in the bill political parties will have a key role in implementing reforms and guaranteeing compliance. Radical reform may present some difficulties for the political parties and candidates but it also throws up opportunities, and we embrace those enthusiastically. 4. The Campaign Financing Bill, 2011 sets out major reforms for funding of election campaigns, use of campaign funds in the nomination process, election campaign and elections. It will provide for the management, spending and accountability of funds during election and referendum campaign. 5. This paper presents CMD-Kenya response to the initial draft dated 18 November 2011. The format of the CMD-Kenya response is an executive summary of what we see as the principal issues, highlighting where we support particular proposals and offering thoughts on how best to deliver them, while signalling clearly what our concerns are with other propositions. This document was developed with the input of representatives of political parties under the facilitation of Dr. Charles Otieno, renowned expert on campaign financing issues. Page 1 of 6
Executive Summary 6. The CMD-Kenya wishes to focus stakeholders attention on seven major areas in what is a far-reaching agenda for campaign and political financing reform set out in the Draft Campaign Financing Bill 2011. These relate to: a. The concept of campaign financing; b. Why campaign political financing is a problem c. The objective of campaign financing law; d. The institutional arrangement; e. Specific provisions and comments; f. Legislative framework for political and campaign financing in relation to other electoral roles and legislations; and g. Envisaged challenges in implementation process 7. (a) The concept of campaign and political financing It is important that the draft bill is clear on the concept of campaign financing to prevent any political and administrative frustration and even litigation in Court. CMD-Kenya believes that campaign financing refers to the manner in which political parties and individual candidates who seek to get elected to political office gather, utilize, and recover funds for electoral campaigns and in the case of political parties seek to maintain themselves as organisations. In this context the scope of the legislation should cover all aspects of campaign financing. We believe that the conceptual framework needs to be reflected in the interpretation to give the legislation effective statutory interpretation. (b) Why campaign and political financing is a problem Campaign financing has been a major concern in Kenya. Significant and unregulated campaign financing often create an uneven playing field in election contest. Large sums of money give certain parties and/or candidates undue advantage over others. Very often the candidates with the most money always win the election or party nomination process. Wide discrepancies in levels of funding between parties and candidates constrains opportunities for political competition and tend to disenfranchise challengers. 8. Most often, the uneven playing field results from the fact that the ruling party or the incumbent candidate control political apparatus and uses it to its own advantage and to the disadvantages of challengers. The financial requirements for entry to electoral competition appear to be getting higher and higher, resulting in political exclusion of those who cannot afford the cost. Another concern has been that elected officials are becoming more accountable to those who finance their campaigns than to their constituents. Large corporate or single donor funding for parties and candidates dominates political decisions and political corruption is a national problem, posing a threat to the Kenyan economic growth, democracy, and the stability of the country. Nearly all major financial and corruption scandals in recent times have been linked to campaign and political financing. The legislation on campaign financing must provide effective regulatory regime for addressing these problems. Page 2 of 6
9. (a) The objective CMD-Kenya believes that to address the problems associated with campaign financing, the legislation must adopt different approach and policy objectives. The scope of the legislation must include disclosure regulations, the prohibition of certain kinds of contributions and donations, the prohibition of certain kinds of expenditure, limits on contributions and spending ceilings as well as public funding. The objective for regulating campaign financing should be about promoting fair political competition and cleaning up politics by limiting the influence of money over governance and policies. We believe that this needs to be reflected in the title to give the legislation its purpose and determine its meaning (b) The institutional arrangement The bill sets out the following institutional arrangement: Campaign Finance Committee, Candidates and Party Expenditure Committees. The Campaign Finance Committee will be a semi-autonomous Committee of the Independent Electoral and Boundaries Commission will be responsible regulating campaign and political financing. 10. It is important that the membership of the Campaign Finance Committee be expanded to include representatives from other Commissions and independent offices such as the Kenya National Human Rights and Equality Commission, Parliamentary Service Commission; Salaries and Remuneration Commission; Commission on Revenue Allocation; Public Service Commission; Auditor-General; and Controller of Budget. 11. The Party Candidate Expenditure Committee will be established by a candidate intending to contest in a party nomination in accordance with the constitution and rules of the political party while a political party that has nominated one or more candidates in an election shall, in accordance with the party constitution and rules, establish a Party Expenditure Committee. 12. The qualifications and procedure for appointment of Candidates and Party Expenditure Committees needs to be set out and consisted with Article 99 (1) (c) (i) or (ii) of the Constitution in the case of candidates for election to the National Assembly or the Senate, respectively; or Article 193 (1) (c) (ii) of the Constitution, in the case of candidate for election to a county assembly. There is also need to have some general provisions on appointment of Candidates which should include requirement of Committees to comply with code of conduct prescribed by the Independent Electoral and Boundaries Commission. 13. Specific provisions and comments The main provisions of Campaign Financing Bill include: candidate s account, party campaign account; disclosure of funds by candidate and political party; spending limits; contributions to candidates; harambees; limits on donations; anonymous or illegal contributions; prohibition on contributions; support of candidate or party by organization; Page 3 of 6
failure to disclose; and establishment of campaign expenditure reimbursement fund. We believe that the following provisions could be improved: a. Clause 2(1).consideration should be made to include campaign financing conceptual framework. This will improve the application of substantive provisions. It will also clarify the meaning of other terms used in the law. b. Clause 4 consideration should be made to expand the mandate of the Campaign Finance Committee to include monitoring, examination, and review of campaign financing documents and reports c. Clause 4 consideration should be made to clarify that Campaign Finance Committee shall be semi-autonomous body within the Commission and not subject to direction or control by any person or authority. d. Clause 6 and 7 consideration should be made to ensure that there is minimum standards and benchmarks in party rules and constitutions for appointment of Party Candidate Expenditure Committee and Party Expenditure Committee. e. Clause 6 and 7 consideration should be made to ensure some basic qualifications and integrity in appointing members of Party Candidate Expenditure Committee and Party Expenditure Committee. Such consideration should determine promotion of representation and participation of marginalized groups f. Clause 11 consideration should be made to require the Candidates to declare their assets, wealth and interests g. Clause 13 consideration should be made to require political parties and candidates to prepare and present their campaign budget before setting spending limits. h. Clause 13 (1) (d) consideration should be made to include campaign budget instead of the funds the candidate intends to use in the campaign. i. Clause 22 (3) consideration should be made to clarify the purpose of Campaign Expenditure Reimbursement Fund j. Clause 23 consideration should be made to establish equitable criteria for reimbursement of campaign funds to Independent Candidates. Further consideration should be made to include minority candidates in the scheme. k. Clause 28 consideration should be made to allow public access to records in accordance with the Constitutional rights to access information l. Clause 33 consideration should be made to include regulations for the process for selecting members of the Campaign Finance Committee 14. The legislative framework for political and campaign financing in relation to other electoral roles and legislations CDM-Kenya believes that the legislations should promote a coordinated statutory framework for campaign and political financing and electoral laws. In this regards the bill should take cognizance of other legislations. There are: Election Act 2011, Independent Electoral and Boundaries Commission Act 2011, and Political Parties Act 2011 15. Under the Election Act 2011 political parties will have access to state owned media services, and public officers are prohibited from publicly indicating support for or Page 4 of 6
opposition to a political party or a candidate, or engaging in the activities or campaign activities of a political party or candidate or using public resources to initiate new development projects. The bill must provide a framework for regulating access to state owned media services and confer powers to the Campaign Finance Committee in this regards 16. The Election Act 2011 prohibits the use of public resources by candidates during elections and empowers the Independent Electoral and Boundaries Commission to demand a full account of all public resources ordinarily at the disposal of the candidates, where the candidates are members of parliament, county governors, deputy county governor, or members of county assemblies. It also criminalizes bribery of voters and election officials. The Campaign Finance Committee powers must include this. 17. The Independent Electoral and Boundaries Commission Act 2011 sets out the functions of Independent Electoral and Boundaries Commission to include the regulation of money that may be spent by or on behalf of a candidate or party in respect of any election. The Independent Electoral and Boundaries Commission is therefore the main enforcement body responsible for overseeing and controlling the operations of campaign and political financing practices. The Campaign Finance Committee powers must include this. 18. Under the Political Parties Act 2011 Political Parties Fund administered by the Registrar of Political Parties was established. It regulate the source of funds of a political party, the distribution and the purpose for which the Fund may be used and makes it compulsory for a political party to declare its assets and liabilities ninety days before a general election as well as the manner in which a political party should keep and audit its accounts. The bill must expressly promote the objectives of Political Parties Fund as set out in the Political Parties Act. 19. Envisaged challenges in implementation process Although the bill proposes remarkable regulations to deal with the complex problem of campaign financing. The implementation of these regulations will be a major challenge. It is generally not the practice for laws to be followed, enforced or complied with in Kenya. Often laws have been breached with impunity in the face of enforcement agencies. 20. The process of enforcing campaign and political financing regulations is likely to be poor. The core legislations on campaign and political financing have been passed without coherent policy. There has been no research conducted by Government or agencies responsible for enforcing these laws to understand the existence, nature and extent of campaign and political financing problems. 21. There are no clear priorities, strategies and parameters for ensuring compliance with the law or regulations and plans for their effective implementation are yet to be put in place. The people responsible for enforcing the regulations have had no training or capacity Page 5 of 6
building and not sufficient technical, human and financial resources have been made available to the mandated institutions. 22. Finally, coordinated framework for all the agencies responsible for implementing various laws and rules on campaign and political financing are yet to be put in place. Political parties, politicians, public officers, state institutions, private sector, and organizations including civil society have not been fully informed of their legal obligations under the new laws and regulations. Page 6 of 6