The High Court in Nairobi has dismissed a petition seeking to compel the State to disburse public funds to all registered political parties, ruling that doing so would encourage the commercialisation of Kenya’s political space.
Justice Lawrence Mugambi upheld the current funding criteria in the Political Parties Act, 2011, which requires a party to have at least one elected representative and physical offices in at least 24 counties to qualify for funding from the Political Parties Fund.
“It must not be lost in mind that the issue at hand is public funds. These conditions are deliberately meant to protect public resources and guard against the mushrooming of briefcase political parties formed solely to draw off public money,” said Justice Mugambi.
The judge said Parliament had acted within its constitutional mandate in enacting the law, adding that there was no evidence of unconstitutionality or discrimination in the requirements.
He noted that political representation is the bedrock of party formation and that any outfit seeking public funding must demonstrate an ability to compete in elections.
“Those that seek to benefit from public coffers must demonstrate the capacity to compete and represent the electorate, otherwise there would be no point of funding moribund political entities just because they have participated in elections and got some votes,” he said.
“The requirement for political representation for a party to benefit from public funds is in my view reasonable and justifiable in a democratic society and is consistent with prudent utilization of public resources, otherwise the political parties fund will be a cash cow for briefcase political parties,” he stated.
The case had been filed by Ford Asili Party Vice-Chairperson Jane Florence Njiru who argued that the current regulations are discriminatory, unconstitutional and detrimental to multi-party democracy.
She took issue with the requirement for a party to pay a Sh600,000 registration fee and establish offices in at least 24 counties.
Ms Njiru accused the Registrar of Political Parties of targeting small parties by launching an audit to ascertain their physical presence across the country, warning that failure to meet the threshold would lead to deregistration.
She argued that the funding model, which is pegged on the number of elected representatives rather than total votes received in an election, gives undue advantage to larger parties and restricts democratic competition.
According to her, the current legal framework favors wealthy individuals and parties, effectively sidelining ordinary Kenyans and smaller political outfits.
“The exorbitant registration fees and the requirement to maintain a presence in half the counties are prohibitive and designed to drive weaker parties out of the political space. The funding model, where the funding is pegged on elected representatives instead of the number of votes that a political party is able to garner in an election is also unconstitutional,” she told the court.
"Unreasonable limitations"
She urged the court to declare the provisions in the Political Parties Act unconstitutional, arguing they impose disproportionate and unreasonable limitations that stifle political diversity.
However, Justice Mugambi found that Ms Njiru had not demonstrated how the application of the law discriminated against Ford Asili or other small parties.
He said the Act applies equally to all registered political parties and does not classify them as big or small, rich or poor.
“All that the Act does is to prescribe minimum conditions for funding, which apply uniformly. The Petitioner has not shown how her party has been unfairly targeted or treated unequally,” said the judge.
He said the petitioner failed to establish what criteria she used to categorize parties and had not shown how the law disadvantaged hers in comparison to others.
According to Section 7(2) of the Political Parties Act, a party does not qualify for public funding if it lacks elected representation in Parliament or county assemblies.
The law also requires a party to meet minimum thresholds of gender balance and ethnic diversity within its leadership, as well as demonstrate nationwide support by recruiting at least 1,000 registered voters in more than half of Kenya’s 47 counties.
The party must also provide physical addresses and maintain offices in at least 24 counties. Justice Mugambi said these provisions are meant to ensure that political parties have a national character and represent the diversity of Kenya’s population.
“The requirements ensure parties are not just regional or tribal outfits but reflect the broad national interests. That the conditions may be expensive or difficult to meet does not render them unconstitutional,” the judge said.
He concluded that the petitioner’s challenge was largely based on financial and logistical difficulties, which, while valid concerns in the political arena, did not rise to the level of constitutional violations.
Ms Njiru’s bid to have the registration fees and office presence requirements declared unlawful was thus dismissed along with her challenge to the funding model.
