We have concluded the general election. The people of Kenya have cast their vote for the offices of President, Member of National Assembly (Parliament), Women Representative in Parliament, Senator, Governor and Member of County Assembly.
It has been said by many observers that the election was free and fair. However, that does not stop anyone from lodging their complaint that there was an election offence. It is therefore important that those celebrating wins and those suffering losses understand and know what election offences are.
An election offence is a violation or breach of laws relating to the exercise of the democratic process of choosing political leaders.
Election offences can be committed by any or all the following persons
a) The Independent Electoral and Boundaries Commission commonly known as the IEBC (hereinafter, the electoral commission) or an official of the IEBC
b) A candidate/political party
c) A voter
Election offences may be committed before, during and after elections. They are generally categorised under the following titles
a) Offences before the election
b) Offences during and after the election
Offences before the election
These offences may be committed by the electoral commission, the candidate or by the voter.
By the electoral commission
a) interfering with election material by removing, destroying, concealing or mutilating or assist in the removal, destruction, concealment or mutilation of any such material save on the authority of the Commission
b) directly or indirectly printing, manufacturing or supplying or procuring the printing, manufacture or supply of any election material regarding the election save on the authority of the Commission
By the candidate
a) Voter bribery
b) Voter intimidation
c) Hate speech
a) Double/multiple registration. This is when your name as a voter appears more than once in the voter’s register.
b) Having more than one voter’s card
c) Impersonation: using another person’s voter’s card
d) Selling or buying voter’s card.
e) Deliberately destroying a voter’s card
f) Carrying another person voter’s card
Offences during and after elections
These too may be committed by voters, the candidate of the electoral commission
By the voter
a) Voting more than once
b) Soliciting or receiving bribes to encourage voting for a candidate
c) Hate speech targeting the opposing side
d) Use of another person’s elector’s card and ID to vote
e) Entering or remaining in an election centre or in any area designated by the Commission for electoral purposes contravening the law.
f) making or publishing any false statement of withdrawal of any other candidate at such election; before or during any election, for promoting or procuring the election of any candidate
By the candidate
a) Campaigning on election day
b) Giving bribes to influence voters’ choice
c) Use of force to influence voters’ choice
d) Any other undue influence on voters to affect their choice
e) Hate speech targeting the other candidate
f) Destruction of campaign materials of the opposing candidate
g) Making or publishing any false statement of withdrawal of any other candidate at such election; before or during any election, for promoting or procuring the election of the other candidate(s)
By the electoral commission or their officials
a) Prevention, obstruction or barring of a person from voting (This offence may however be committed by a voter against another voter or a candidate against voters)
b) forging, defacing or destroying any ballot paper, or delivering to a returning officer any ballot paper knowing it to be forged;
c) interfering with election material by removing, destroying, concealing or mutilating or assist in the removal, destruction, concealment or mutilation of any such material save on the authority of the Commission
The role of citizens
Whereas politicians may use election offences to secure a nullification of their opponents’ election, ordinary citizens who are voters in the electoral process have the duty to report these offences to the electoral commission or to the police
It is also the duty of every politician to participate in peaceful elections by conducting campaigns in a peaceful manner to always adhere to electoral laws in Kenya.
A confirmation that indeed an election offence was committed can attract both criminal and civil repercussions. When one is found liable for an election offence or offences, he or she may be warned, disqualified from participating in the subsequent election, nullification of results, payment of fines/costs.
More so, we must all shun electoral offenders because they undermine our democratic system, thus robbing the nation of a free and fair electoral process which is the bedrock of a democratic government like ours.
BY SAMALI BITALA
This article appears in our digital law newsletter, The Deuteronomy Vol 8, Issue 2 of August 11th, 2017
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