Most of the 91 registered political parties could be locked out of the November 27 by-elections and future polls for failing to comply with the law, amid questions over whether they qualify for funding by the government.
That has been revealed by Auditor-General Nancy Gathungu in her criticism of the Office of the Registrar of Political Parties (ORPP) in a report on government funds for the 2023/24 financial year tabled in Parliament.
Ms Gathungu accuses the registrar of failing to ensure parties comply with the Political Parties Act of 2011.
Auditor-General Nancy Gathungu.
Photo credit: Dennis Onsongo | Nation Media Group
While the law stipulates that a party must have physical offices in at least half of the 47 counties to attain “fully registered” status, the report says a significant proportion has not met the requirement.
A review of party records at the ORPP revealed discrepancies between the information provided during registration and the actual presence of offices, prompting the drive to have them comply with the law or face delisting.
“While parties submitted addresses for their headquarters and county offices before registration, field visits in March 2024 revealed that a significant number lacked offices in more than half of the counties,” the audit says.
The report does not reveal the parties’ status in terms of compliance with the law, but enquiries at the ORPP by the Daily Nation revealed that only President William Ruto’s United Democratic Alliance (UDA), Mr Raila Odinga’s Orange Democratic Movement (ODM) and Mr Kalonzo Musyoka’s Wiper have complied with the law.
The audit was before new entrants such as former Deputy President Rigathi Gachagua’s Democracy for the Citizens Party (DCP) – the latest outfit to submit its papers to the ORPP – were fully registered.
The November 27 mini-elections are to be held in Baringo County (Senate), as well as the National Assembly constituency seats for Banissa, Kasipul, Magarini, Malava, Mbeere North and Ugunja.
The vacancies arose because the elected representatives were appointed to the Cabinet, died or were removed through court judgments in election petitions.
To avert a situation parties could be barred from fielding candidates in future, the Registrar of Political Parties says she has embarked on building capacity to address the matters by the Auditor-General and subsequent financial reporting.
“We are conducting periodic audit clinics for political parties with adverse and disclaimer audit opinions. We are also conducting continuous training of political parties’ organs and officials on public finance management and other processes,” Ms Sophia Sitati, the Acting Registrar of Political Parties told the Daily Nation.
Acting Registrar of Political Parties Sophia Sitati.
Photo credit: Pool
Apart from the 91 parties, records at the ORPP show that another 19 are provisionally registered and are in the process of becoming fully-fledged political outfits.
The law says a provisionally registered political party is eligible for full registration if it submits to the ORPP the locations and addresses of its branch offices.
The audit says parties attributed non-compliance to insufficient cash from the Political Parties Fund and difficulties in affording rent and staff salaries.
“This raises concerns over the parties’ ability to operate effectively and engage with constituents across the country. In these circumstances, the registrar was in breach of the law,” the audit says.
In addition to having a physical presence in at least 24 counties, a party shall be fully registered if it has recruited at least 1,000 registered voters as members from more than half of the counties.
Political parties are obliged to ensure their members reflect regional and ethnic diversity and gender balance.
Their governing bodies must also do the same. They must ensure special interest groups are represented.
The law says a party must ensure no more than two-thirds of its governing body members are of the same gender, and demonstrate that the members meet the leadership and integrity requirements, as well as the ethics-related laws.
According to Section 25(2) of the Political Parties Act, a party is not entitled to receive money from the Political Parties Fund if more than two-thirds of its registered office-bearers are of the same gender and if its governing body does not include representation of special interest groups.
Senior Counsel Charles Kanjama noted that political parties can field candidates in elections “as long as they are registered”.
Mr David Ochami, a Nairobi-based lawyer, urged the Independent Electoral and Boundaries Commission (IEBC) to “take a stand and courageously and boldly exclude political parties that do not comply with the law from participating in any elections”.
“The electoral commission should stand firm and exert authority. If a party does not satisfy the legal requirements for operating, it should be compelled to comply or denied the benefits of complying with the law,” Mr Ochami said.
He added that if a party cannot obey the law, it should not be on the ORPP’s list.
“Obeying the law is not an option or a luxury one can choose to ignore and still expect to be recognised as a legal entity,” Mr Ochami said.
“The benefits of complying with the law for political parties include receiving funding from the government and being able to participate in elections.”
According to Section 24 of the Parties Act, at least 0.3 per cent of the government revenue, as audited and approved by the National Assembly and administered by the Registrar of Political Parties, should be allocated to qualifying parties.
During the 2023/24 financial year, some Sh808.3 million was allocated to the parties.
Based on the Sh2.7 trillion collected by the Kenya Revenue Authority, the parties should have received at least Sh8 billion.
“This amount was not in compliance with the law on funding of parties. This underfunding may have had a negative impact on the planned activities of the 48 eligible political parties,” the report says.
