Early campaigns outside the election period violates the right of equality and equal protection of the law, principle of rule of law and free and fair elections, the High Court has declared.
Justices Hedwig Ong’udi Patricia Gichohi and Heston Nyaga noted that campaigns, by their very nature, have the potential to negatively impact the citizens.
The judges said incessant campaigns conducted outside the election period interfere with or compromise the citizens’ rights as guaranteed by the Constitution.
“There is no doubt that the election period is characterised by heightened political tensions, suspicions, negative profiling, and general slowdown of the economy,” said the judges, adding that there was a need for the country to take a break from political campaigns and concentrate on development and the wellbeing of the citizens.
The judges made the decision in a case filed by the lobby group Kituo Cha Sheria, just before the 2022 General Election.
According to the judges, when people concentrate on political campaigns generally, they tend to forget about their duties and responsibilities.
“Whatever the political class gives out as tokens for attendance can never replace their normal earnings and this creates divisions in families. It also creates a culture of political dependency,” the court said.
Justices Ong’udi, Gichohi and Nyaga directed Attorney-General Dorcas Oduor to take the necessary steps, within 12 months, to enact a law governing political campaigns, in any form, conducted outside the election period.
The court said as the legal adviser to the government, the Attorney General has a duty to take steps on any gaps in the law, when addressing the role of the Independent Electoral and Boundaries Commission (IEBC) on early campaigns.
The lobby group argued that political campaigns heightened the risk of political violence, misuse of public office for electoral advantage, and unlawful use of public resources during campaigns.
The failure to act and stop the early campaigns, Kituo Cha Sheria argued, undermines the fundamental principles of the electoral system outlined in Article 81 of the Constitution, which mandates free and fair elections that are devoid of violence, intimidation, improper influence, corruption.
The Elections Act grants the IEBC the mandate to initiate electoral process through publication of a notice for all positions in the General Elections.
The commission also set timelines for nomination of candidates by political parties for each contested position, the campaign period and other activities such as party nominations and dispute resolution process.
Through Dr John Khaminwa, the lobby said campaigns outside the prescribed period heighten tension, increasing the likelihood of violence leading up to the election.
Dr Khaminwa added that the campaigns negatively affect economic development due to a prolonged electioneering frenzy, which is unconducive for investments and development.
He said the reduced economic growth and lack of foreign investment, contribute to increased inflation and a rise in commodity prices such as oil, gas and food and further, that the anxiety created by early campaigns negatively impact on tourism, which is a major foreign exchange earner, thereby weakening the shilling.
The electoral body defended itself saying it did not in any way, manner, or form encourage, sanction or give legitimacy to carrying out of early campaigns by any of the political aspirants outside the legally prescribed campaign period.
IEBC further said its mandate does not extend to acting, sanctioning or penalising electoral offence culprits.
“Moreover, in the absence of explicit legal prohibitions, this de facto inequality disadvantages law-abiding candidates and distorts the fairness of the electoral process. Therefore, early campaigns, especially when unregulated or unevenly enforced, can amount to a violation of Article 27 by denying equal protection, opportunity, and benefit under the law,” said the judges.
