Early political campaigns illegal, court now declares

Opposition leaders led by Kalonzo Musyoka and Rigathi Gachagua (DCP) address locals in Voi, Taita Taveta county. [@rigathi, X]

A three-judge bench has declared early political campaigns before the legally prescribed campaign period unconstitutional.

Justices Hedwig Ong’udi, Heston Nyaga, and Patricia Gichohi ruled that carrying out political campaigns outside the election period violates the right of equality and equal protection under the law.

“The campaigns violate the right to life, freedom from violence, principle of impartiality, right to development, principle of the rule of law, and free and fair elections,” the judges ruled.

The judges thus ordered the Attorney General (AG) to act within 12 months and enact a law governing political campaigns, in any form, conducted outside the election period.

According to the judges, election campaigns, by their very nature, have the potential to negatively impact the citizens.

“There is no doubt that the election period is characterised by heightened political tensions, suspicions, negative profiling, and general slowdown of the economy,” they ruled.

To tame the tensions, the judges ruled that the political season should not be a continuous situation, and there was a need for the country to take a break from campaigns and concentrate on the nation's development and the well-being of its citizens.

Further, the judges agreed that when  political campaigns are carried out outside the election period, they divert public resources and disrupt service delivery, thus undermining inclusive and equitable development.

“When people concentrate on political campaigns, they tend to forget about their duties and responsibilities. Whatever the political class gives out as tokens can never replace their normal earnings, and this creates divisions in families and a culture of political dependency,” they ruled.

The judges also noted that candidates who campaign early gain an unfair advantage through access to media or public platforms over candidates who abide by the law.

They also regret that there is selective enforcement by authorities; some candidates are allowed to campaign early without consequences, resulting in unequal application of the law.

The judges say that campaigns are conducted amidst a culture of impunity, resulting in clashes between rival supporters, intimidation of opponents, and use of hate speech that may directly or indirectly incite violence.

“This, in our view, results in a violation of the spirit and intent of the constitution and underscores the need for proper regulation and enforcement to ensure that political processes remain free from any form of violence,” they ruled.

Even though the Covid-19 pandemic is no longer a serious threat, the judges say that public health protocols are ignored during campaigns, and the same pose a direct threat to life.

They insist that in some cases, the campaigns may lead to the potential spread of communicable diseases, thus endangering vulnerable populations.

The judges noted that there was no law governing campaigns outside the election period, and the same may increase the risk of violence, intimidation, and public disorder.

The judges held that the AG, as the legal advisor to the government, had a duty to take steps to fill any gaps in the law and fill them.

The judges ruled in a petition filed by Kituo cha Sheria, seeking orders stopping early campaigns.

The organization sued the Independent Electoral and Boundaries Commission (IEBC), the Director of Public Prosecutions (DPP), the Registrar of Political Parties, the Attorney General, and the Inspector General of Police.

It mentioned UDA, ODM, Jubilee, ANC, Wiper, and KANU as interested parties in the case.

They accused the government agencies of neglecting and refusing to take action against aspirants or political parties carrying out early campaigns.

“The court should order the DPP to investigate and prosecute those found culpable of campaigning outside the legally prescribed period,” it submitted.

In response, IEBC said it gave no sanctions for any political party to start early campaigns, and it has no legal authority to stop the campaigns.

The political parties submitted that there was no evidence of a violation of the constitution during previous campaigns.