MPs reject election campaign financing limits gazetted by IEBC

It may require amendment of the Elections Campaign Financing Act if the implementation of campaign spending limits in next year’s General Election is to be successful.

Though legal minds are divided on the import of IEBC’s gazettement of the expenditure limits on Monday, a decision of a Parliamentary Committee to shoot down draft regulations could complicate the work of IEBC in regulating just how much candidates and political parties spend on the campaign trail.

It’s been not so kind a week for the IEBC commissioners and staff who have for two consecutive days been subjected to finger pointing by parliamentarians.

It began on Tuesday when Parliament took a moment to debate the gazettement of spending ceilings by IEBC, which had four days earlier presented draft regulations to Parliament for approval to implement the Campaign Financing Act.

But the journey dates back to December 2013, when Parliament eventually enacted the law to regulate campaign financing and expenditure after a failed attempt in 2012 that would have ensured limited expenditure in the march 2013 General Election.

It was clear then as is now, that regulations to implement the law should be in place at least one year to a General Election. In December 2016 three years since enactment, Parliament rejected draft regulations that had been submitted by IEBC, partly because they were time-barred as the General Election was just 8 months away. In January 2017, Parliament voted to delay implementation of the Campaign financing law until after that year’s election.

With the August 2017 election out of the way, there was no more urgency. IEBC took stock of the election cycle and proposed a series of amendments to election laws.

According to Chairman Wafula Chebukati, the commission held discussions with the Justice and Legal Affairs Committee and agreed to raise amendments to the law on campaign financing. Those amendments were submitted to Parliament in August 2020. At the time, regulations to the act were yet to be enacted.

“We were hoping if these were acted upon then new regulations would be made upon passage of amendments,” said Chebukati.

All this time, IEBC was relying on the draft regulations that had been presented in 2016 before rejection.

On the 27th of July this year, IEBC attempted to resubmit the 2016 draft regulations albeit erroneously. Subsequent correspondence between parliament and the commission ended up at the resubmission of the same 2016 regulations, which now the committee on Delegated Legislation finds to have been submitted out of time.

‘You have actually brought the regulations of 2016, and we are now in 2021, all along you want to paint parliament as bad while the responsibility is on your side,” said Charles Njagagua, Vice Chair, Delegated Legislation Committee.

And then on Monday this week, IEBC gazetted the expenditure ceilings which MPs argue should have first been approved by the house as part of the draft regulations. IEBC of the view that section 18 of the law empowers them.

The section reads, “The Commission shall, at least twelve months before an election, by notice in the Gazette, prescribe the spending limits including the total amount that a candidate, political party… may spend during an expenditure period, including the limit for media coverage.”

The draft regulations have now been nullified by the parliamentary committee, with the plenary expected to consider its report for adoption or rejection.

As matters stand, IEBC may have to implement the Campaign-Financing Act without regulations, as they are time barred. But doing so may end up being too difficult without express instructions of how candidates and political parties would implement the act and how the commission would monitor.

To salvage the situation, it may require amendment of the election Campaign-Financing Act to reduce the one year period needed before regulations and spending limits are published. Question is, will parliament bear the good will?