A Do-Die for Azimio, the Hustlers spoiling for a fight: The Political Parties Bill now a war path.

Introduction

The battle over the proposed amendments to the Political Parties Act has proven to spring a snowball into a contestation of who controls the numbers in the National Assembly. On Wednesday, 22nd December 2021, the controversial debate on the Political Parties (Amendment) Bill, 2021 sponsored by the Leader of Majority, Hon. Amos Kimunya, MP, was not able to proceed after the Deputy Speaker, Hon. Moses Cheboi, MP, pulled the plug on the debate. The Deputy Speaker who was chairing the plenary of the house adjourned the sitting after the Members approved the Bill at Second Reading and several proposals were coming from the floor in the Third Reading.

However, a day later, the Speaker of the National Assembly, Hon. J. B Muturi who was ameliorating from a surgery following some slight injury at his office, issued a gazette notice calling for a special sitting to debate and conclude on the Bill on the Wednesday, 29th December 2021.

Questions have been flinging as to the import of the Bill and why it is important for the Handshake team, who have made the enactment of the Bill to law a do-or-die and why the Members of the National Assembly allied to the Deputy President have stood guard to reject the Bill. I, therefore, attempt to answer these questions below.

Definition of a Political Party

The Bill has defined a political party to include a coalition political party. The members of a political party will therefore include individuals who can form and join a political party and political parties, who may now be able to come together to form and join a political party, which in do doubt shall be a coalition political party. Persons forming a Coalition Political Party may be required to submit a coalition political party agreement to the Registrar of Political Parties six months to the general elections. This would therefore mean that coalitions that we have previously witnessed such as the Coalition for Reforms and Democracy (CORD), The National Super Alliance (NASA) and lately the One Kenya Alliance (OKA) going forward, may have to be registered with the Registrar of Political Parties as Coalition Political Parties. The Handshake team of President Uhuru Kenyatta and ODM Leader Raila Odinga are pushing for the Bill, in a move to see the ODM Party Leader recreate his presidential ambitions under the Azimio la Umoja Movement, which has seen the endorsement of several parties such as the ODM, Jubilee Party and the Narc Party of Charity Ngilu, inter alia.

A member of a Political Party shall be deemed to have resigned from the Party

The Jubilee party has had a tug of war with the Deputy President and a host of Members of the National Assembly and the Senate allied to the DP, who are members of the Jubilee Party but have since technically joined and participated in the formation of the United Democratic Alliance (UDA) Party and have taken center stage in championing the interests of the UDA Party and not their sponsoring party, Jubilee Party. For instance, in several by-elections that have been witnessed in the former Jubilee Party strongholds, the members have actively campaigned for persons running for those elections under the UDA Party against the Jubilee Party.

Another case in point, the Malindi Constituency Member of the National Assembly, Hon. Aisha Jumwa, MP, who was elected under the Orange Democratic Movement (ODM) Party and sits as a Commissioner in the Parliamentary Service Commission courtesy of the ODM Party, has recently been participating in the activities of the UDA Party, championing its interests in the Parliament and political forums and is seen to have taken a stand to join the UDA Party.

Consequently, the removal of such members of the parties has proven difficult under the Political Parties Act. Jubilee Party tried to remove Senator Isaac Mwaura from their membership list, the High Court has refused such actions. On the other hand, the ODM Party also attempted to remove Hon. Aisha Jumwa from its membership list and subsequently from the Parliamentary Service Commission as a Commissioner, this has not been possible.

These actions have necessitated both the ODM Party and the Jubilee party to take a stand to support the Bill, and in particular the provisions which require that Political Parties have the liberty to remove from their membership lists persons who form or join another political party, in any way or manner publicly advocates for the formation of another political party or promotes the ideology or policies of another political party. The Bill will however require them to notify the subject member of the decision to remove them from the membership list and give them an opportunity to be heard. It is important to note that the Registrar will only be required to ascertain that the procedure is followed, once satisfied, the Registrar will be under a statutory obligation to remove the member from the political party list. Significantly, Members of Parliament who are removed from the Party register in the manner contemplated under the Bill, may end up losing their seats and by-elections shall be held subsequently.

Expulsion from the Political Party

The Bill gives the political party the authority to expel from its party, members who act in contravention of or breaches their obligations under the Constitution of Kenya, the Political Parties Act and the Political Party’s Constitution. The Right to be informed of the contemplated expulsion and the right to be heard however remain sacrosanct.

The Registrar of Political Parties’ Sweeping Powers

The Bill has provided the Registrar with the powers to suspend or deregister a political party that contravenes the Act and their own Constitution. An Opportunity is however granted to the Political Party to address such contraventions and take actions to resolve them, failure which leads to the liberty of the Registrar to exercise the powers contemplated in the Bill.

The Distribution of the Political Parties Fund

Among the contentious issues that led to the collapse of the National Super Alliance (NASA) was the distribution of the Political Parties Fund that was received by the ODM Party. The Bill has now come up with a clear-cut criteria on how the fund will be distributed and which political party qualifies to receive the fund. The Bill contemplates that the Fund shall be distributed in the following manner: -

1. 70% of the Fund proportionately to the political parties based on the total number of the votes secured by each political party

2. 15% of the Fund proportionately to the political parties based on the number of candidates from special interest groups in the party elected in the preceding general election.

3. 10% of the Fund proportionately to the political parties based on the total number of representations for political parties elected in the preceding election.

4. 5% has been left as administration cost.

Further, a Political Party under the circumstances below may not be entitled to the fund: -

1. If more than two-thirds of its registered office bearers are of the same gender.

2. If the party does not have special interest groups in its governing body. Special Interest groups under the Constitution include the Youth, the Women and Persons Living with Disability.

3. If the party does not have an elected Member of the National Assembly, the Senate, Governor or Member of the County Assembly.

Coalition Political Parties may now have a proper legal foothold and have a stake in the Fund and will be required, therefore, to provide the mode of sharing the Fund in their Coalition Agreement among the political parties who members to that coalition political party agreement.

The Bill also may introduce in the management of the registers held by the Registrar of Political Parties, the Political Parties Management Information Systems. Further, in an attempt to seek to have a classical legal underpinning for nominations, the Bill may introduce now under statute law, not left to the subject political party's constitution, two types of nominations; the direct nominations and the indirect nominations.

Conclusion

It left to a guess what the Handshake team may greatly achieve with the enactment of the Bill and what the Hustlers team may greatly lose that they have promised to go to court in the event the Bill passes. We can just but only proceed with a wait, relax and watch attitude and see the unraveling of the National Assembly on the 29th December 2021 as it seeks to conclude on the Bill and its effects thereafter.