The Independent candidature; the new concept in Kenya’s democracy and the law

Kenya, just like any other Nation in the world gets heated towards elections. People are so passionate on political issues and stakes are ever higher in political leadership. This year’s election is no different. From the TV screens to social media, to live campaigns to road shows, radios shows to Newspapers, you cannot escape a political discourse in a day.

With less than two months to August 8 General Elections, campaigns are rightly in top gear. All the players to this year’s election, particularly the National Super Alliance and Jubilee Party are doing everything in their power to win the hearts of voters. The discourses range from substantive issues, to matters of procedure and even political propaganda.

The electorate have been treated to promises of sound infrastructural plans, better food security blue prints, how Kenya will be a more secure, lovely foreign policy, to local development, double digit economic growth, affordable education and all that will make the Nation greater.

Unless they are castigating their opponents, there is no mention of huge foreign and local debts which are yet to be settled or how such debt will impact on the country’s future economic plans.  No mention of how corruption and corrupt cartels have simply beaten us in governance, and how a few are enjoying the plunder of public resources. In other words, there is very little about the other side of the coin. We all seem to want to sound good. That is a topic for another session though.

Independent candidates as an issue in the political arena

If there is one unique subject which has excited the political arena in recent times, it is the place of an Independent candidate in our democracy. All the major established parties, particularly the two main contenders, are concerned with their emergence. In fact, their sentiments denote convergence against the new kid in the block.

From the villages of Uashin Gishu to Shibale in Mumias, from the beautiful beaches of Homa Bay to the beautiful Hills of Taita Taveta, the discourse about Independent candidates is real.

You see, when they amended the Election Laws in 2017, the country focused on one fundamental issue, the section allowing the Independent Electoral and Boundaries Commission to introduce a complementary mechanism for identification and transmission of results. I remember watching the Senate session and the debate did not disappoint. In all the hues and cries, Senator Moses Wetangula charged, ‘whenever you legislate, think of the law you are making in the hands of your worst enemy’. Those sentiments kind of ring a bell about the current matter of Independent candidates. Nobody thought at the time they will cause such magnitude of discomfiture to the political establishment.

The debate then did not quite mention the place of Independent candidates. Nobody had issues with them. They rather focused on locking out defectors. There seems to have been consensus about it within the ranks of the major players.

So, who is an Independent candidate?

The passing and subsequent promulgation of the Constitution of Kenya in 2010 brought forth substantial transformations in the political landscape of Kenya. One such tenet of the fundamental change is the introduction of the Independent candidate. Article 85 of the Supreme law provides, ‘Any person is eligible to stand as an independent candidate for election if the person— (a) is not a member of a registered political party and has not been a member for at least three months immediately before the date of the election’.

The clause did not just introduce the candidature of Independent candidates; it also set timeline for aspirants to have made up their minds to join the race independently. If you belonged to any political party, you are needed to have tendered your resignation at least three months before elections.

The constitutional provision on timelines provided a security for the space of Independent candidates. The legislature cannot toy around with it like any other Act of Parliament. It is a constitutional provision and the threshold for its amendment is higher.

To lock out party hoppers, the legislators simply Amended Section 28 of the principal Act, the Elections Act No. 24 of 2011, by enlisting more days for submission of party lists to the Commission for nominations. Political parties are thus needed to submit their lists at least one hundred and twenty days before the date of the election. The original timeline was only 45 days. The current timeline translates to four months to the General Elections. Again, there was no point of dissenting views between the major players in the Eleventh Parliament. This was partly influenced by the fact that the major players were not independent.

 What the amendment meant?

You see, every circle of elections faces this challenge of poor party primaries. People lose their lives and property because of the subsequent violence. The dissatisfaction is often higher in areas that support one main contender in the elections. It is always believed that the nominations mark the main elections for the lower seats save for the presidential elections.

For instance, in the run to 2013 elections, the Coalition for Reform and Democracy (CORD) was a key contender against the then Jubilee coalition. They got over 5 Million votes of the possible 14 Million registered voters. Their strongholds which included parts of Western Kenya, Coast and Nyanza regions faced challenges at nomination.  A point in case is the one of Governor Okoth Obado of Migori who protested the nominations of his party and eventually defected to little known People’s Democratic Party (PDP). He eventually won the General Elections and defected to ODM.

Worse still, the main political party contenders never wish to lose their key aspirants to rival political parties or coalitions. Such moves often provide necessary impetus for opponents. The case of Honourable Memusi Kanchori in Kajiado Central refers. His move changed the entire political landscape in his favour and that of his latter party in the region.

The amendment of the section was thus observed as a route to blocking defections upon the submission of the party lists to the requisite Commission. In the circumstances, the Independent candidature became the only viable option for disenfranchised aspirants after the party primaries.

The ideological gap in our politics:

It is worth noting that political leadership ought to be on the basis of ideology. There should be a clear difference in the intentions of how contenders want to tackle issues affecting communities. For instance, the matter of deploying our security forces in Somalia, one may advocate for immediate return of troupes while others may prefer they stay longer, and probably have a base there.

In America, it is clear who supports abortion and who is opposed to it. That way, we save our politics from insults and ethnic mobilization. Voters will go for what works for them. Unfortunately that is not the case for now. Here, majority became independent candidates after failing to secure party tickets. All through the campaigns ahead of the party primaries, they danced to the tune of their preferred political vehicle only to turn against it when they fail to secure the ticket. It is a fundamentally flawed route to independence candidature.

The politics of Independent candidates point to the void of the alternative narrative. In some cases, they advocate for the very things the political parties they decamped from allude to, including supporting their presidential candidates. Save for their symbols, you would mistake them for being candidates of affiliate parties within a coalition.

The debates in certain quarters have been appalling. It is more of a reflection of the faults in our party nominations as opposed to ideological stand points. Consider a case where independent candidates and their supporters call upon a leader of a political party to refrain from campaigning for party candidates. They argue that such actions portend danger for their status. They cite flawed nominations which led to their departure as reason why they should be treated differently.

They aver that they still love the leader of the party.

Honestly the narrative has no space in progressive politics. Look here, the leader of the political party or coalition is marshalling his flock. He is fighting for the space of his political party. He or she is looking at the 12th Parliament for instance; courtesy of party structures, he can only depend on the devil within the party as opposed to the independent angel. This is a clear case of failure by aspirants to provide an alternative progressive narrative. The new narrative for the independent aspirant ought to focus on the voter, not a party you already decamped. That said, it does not excuse bungling party nominations.

The propaganda against them is equally nauseating. Take for instance; Honourable Raila Odinga and President Uhuru Kenyatta are key contestants in the upcoming elections, courtesy of recently released Synovate Polls. In Raila’s NASA affiliated areas, all that relates to Uhuru Kenyatta is not appealing and discouraged; likewise, the Jubilee affiliated areas find Raila related discourses inappropriate. Rivals in NASA affiliated parties refer to their independent counterparts in Kiswahili as Wagombeaji Wa Uhuru, loosely translating to candidates for Uhuru. This is intended to portray them as affiliated to President Uhuru. The right term is ‘Wagombea huru’.

What is required of an independent candidate?

The law outlines specific requirements for the candidates. The Independent Electoral and Boundaries Commission is expected to effect the requirements. Prior to their nomination, independent candidates are needed to submit the symbols they intend to use during the election to the Commission. The symbol may be rejected by the Commission if it is obscene, resembles another already registered for another candidate or party.

For Ward representatives, an independent candidate ought to be supported by at least five hundred registered voters in the ward. The number rises to one thousand for parliamentary seat and two thousand for the Senate. The stakes are even higher for the presidential candidates who are expected to enlist two thousand registered names in at least 24 counties. Those enlisted are expected to be registered voters within the respective Wards, Constituencies or Country. The aspirant shouldn’t be a member of any political party three months to the general elections. This explains the hurry to forward their names in May 2017.

Besides the specific provisions for independent candidates, they are expected to meet the entry requirements of any seat they wish to occupy. So, one who seeks to be a Member of Parliament should be a registered voter, satisfy relevant academic credentials, required not to have held any constitutional office five years preceding the date of elections and also NOT a state officer other than Member of Parliament, Governor or Senator. They should also be of sound mind and not bankrupt.

You can find yourself an independent leader

How else can one become an independent President, Governor, Member of Parliament, County Assembly or Senate? The law considers mergers between political parties as an alternative route to non-affiliated leadership. In such circumstances, some members are likely to be opposed to the arrangements. When the agreement is finally reached, the member(s) opposed to the new political outfit may remain independent political leaders in their respective seats.

In the case that a political party is deregistered, the members of the party may consider retaining their seats as independent leaders (MP, Senator…).  Coincidentally, one of the grounds for deregistration is failure by the political party to promote free and fair nomination of candidates. Should this be proven, probably all candidates who found refuge in political parties courtesy of disputed nominations may find themselves as independent leaders.

The phenomenon of the political parties is not unique to Kenya; the president of Bulgaria is an independent albeit with the support of one major party, the Bulgarian Socialist Party. Canada is reported to have had several leaders non-affiliated to political parties. However, the number diminished when democracy took shape. The concept is also practiced in Russia because they have a high threshold of registering political parties. Germany, Croatia and France are mentioned as countries that practice the concept of independent candidature. However, Brazil still expects aspirants to have political affiliation.

An opportunity for them to serve:

The independent candidates should be given equal opportunity to the electorates as others affiliated to political parties. They should not be treated as outsiders. The electorate ought to accord them equal opportunity and consider them for seats if they show the requisite potential to deliver.

The challenges that await independent members are after elections shouldn’t be downplayed. For those who will be Governors, they will have to align themselves with dominant political parties to have their policies; Bills and all related work in the Assembly succeed. The members of the County Assembly or Parliament, both Senate and National Assembly will not have it easier either. They will have to work closely with major coalitions or political parties to push their Agenda through the relevant houses. However, they stand a chance of tilting the scale for either political divides. As opposed to other political parties or coalitions, they are not subject to any principal rules on how they vote in their respective houses.

This far, it is apparent that the position of the Independent candidate is here to stay. It certainly fills the void created by the indiscipline of the political parties. The position should therefore be propped not only to ensure the introduction of credible party operations but also to elevate political discourse in the country.

As President Obama once opined, ‘democracy cannot be imposed from outside, each society must search for its own path and no path is perfect,’ if the independent route will breathe democracy in our parties and ultimately into our systems of governance, so be it.


This article appears in our digital law newsletter, The Deuteronomy Vol 6, Issue 3 of June 16th, 2017

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