Cablegate: Parties Scramble to Comply with Political Parties

DE RUEHNR #2696/01 3370932
P 020932Z DEC 08




E.O. 12958: N/A



1. Kenya's notoriously disorganized political parties are
scrambling to comply with a series of administrative,
organizational, and financial requirements imposed by the
Political Parties Act (the Act) before the December 31
deadline. The Act aims to bring much-needed order to Kenya's
party system, long characterized by moribund party
structures, murky finances, and a lack of transparency. Most
major parties have yet to comply with the Act (reftel). The
governing parties, the Orange Democratic Movement (ODM) and
the Party of National Unity (PNU), are scrambling to
transform their structures and overcome internal political
issues to comply (septel). The Act is no panacea for what
ails Kenya's political system, but it is a good start to
curbing disruptive behavior among elected officials and to
achieving more functional and better regulated parties, keys
to Kenya's democratic consolidation. End Comment.

The Political Parties Act

2. After multi-party politics came to Kenya in 1992,
political parties mushroomed. By 2007 over 300 political
parties were registered; 117 took part in last year's general
election. Many parties were dormant between elections and
emerged at election-time for the sole purpose of collecting
fees (essentially bribes) from aspiring candidates in
exchange for a place on the party ticket. Even
well-established parties have weak institutional capacity and
opaque governance practices; often they served as little more
than personal vehicles for their leader. The Societies Act
under which parties previously registered provided a weak
legal framework for regulating political parties and imposed
few requirements for a party to continue its existence.
Political parties financing was opaque and not subject to any
disclosure requirements. The absence of public party
financing led many office holders to resort to corrupt public
dealings to finance their political parties. The Goldenberg
and Anglo-Leasing scandals were, in part, driven by the need
for campaign slush funds. In addition, elected officials
switched parties frequently with impunity, weakening party
discipline, a key to a functional parliament. Furthermore,
after the failed constitutional referendum of 2005,
opposition Members of Parliament joined the government in
defiance of their party, blurring the lines between
government and opposition.

3. Civil society realized that strong, transparent, and
capable political parties are critical to entrenching
democracy. It had been advocating, unsuccessfully, for
framework legislation to regulate better political party
governance and finances since the advent of multi-party
politics. The movement gained critical mass in 2005, when a
number of non-governmental organizations, with USG financial
support, formed the Coalition for Accountable Political
Financing to lobby for legislation to make more transparent
the operations and financing of political parties. The
resulting Political Parties Act (the Act), enacted in October
2007, was signed into law by President Kibaki in March 2008.
It came into force on July 1.


4. The Act's primary goals are to promote political parties
with national outlooks and membership, with transparent
internal governance structures and financing, and that hold
regular and transparent intra-party elections. The Act
treats political parties as quasi-public institutions; it
increases record-keeping requirements for parties and
mandates annual audits of party finances, which must be made
public. It forbids civil servants and army personnel from
serving as founding members of parties or holding party
office, as well as actively engaging in political party
activity or publicly endorsing candidates. The Act also bans
civil servants from political activity which gives the
appearance of compromising the political neutrality of the

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civil servant. It addresses gender balance by requiring that
each gender be represented in at least one-third of party
leadership positions.

5. The Act regulates behavior of elected officials in
important ways; it prevents opposition politicians from
accepting positions in government without their party
approval, and declares vacant elected offices when the holder
resigns from the party which supported his/her election bid.
The latter provides a particularly strong incentive to
maintain party loyalty; no incumbent wants to face an
electorate that rejected 70 percent of incumbent MPs at the
2007 general election.

6. To achieve its goals, the Act forbids party names which
hint at exclusiveness on tribal, regional, gender or other
grounds. It also requires parties to have at least 200
members in each province, and at least one founding member in
each of Kenya's 149 districts, the political subdivision
directly below the province. The Act also requires parties
to maintain a national network of offices. To strengthen
internal governance of parties, the Act requires that each
party amend its constitution to provide for, among other
things: the composition and powers of the governing party
bodies, the titles of officers, terms of office and method of
election, appointment, and dismissal of party officers. It
also requires parties to state clearly the procedures for
amending constitutions. Each of these issues have bedeviled
parties under the more lax registration the Societies Act
provided, often resulting in lawsuits.

Finance Reform

7. The Act allows parties to fund-raise through membership
fees and donations by private individuals. It caps
individual donations at approximately USD 60,000 per year
(5,000,000 Ksh), although the Act allows a one-time exemption
for founding members to donate in excess of the limit in the
first year of registration under the Act. Parties are banned
from accepting donations from non-Kenyans, as well as from
Kenyan and international non-governmental organizations.

8. The Act creates a Political Parties Fund (the Fund) that
will be financed through the government's budget. The Fund
will be allocated as follows: 15 percent of the Fund will be
distributed equally among all eligible political parties; 80
percent of the Fund will be distributed to parties
proportional to the total number of votes secured at the last
general election by party candidates at all levels; and, five
per cent of the Fund will be used to cover administrative

9. Parties are required to make annual public disclosures of
all donations, from any source. The accounts of each party
will be audited every year by the government's Auditor
General, who will forward these adits to the Parliament and
the Registrar. The Act enables the Registrar to request the
Auditor to carry out an audit of a political party. The
Registrar will publish an annual report of the audited
accounts of each political party. False declarations shall
be punishable by fine and/or prison sentence.

Registration Issues

10. The Act requires all parties to re-register with a
newly-created Political Parties Registrar (the Registrar),
which is part of the Electoral Commission of Kenya.
Re-registration requires payment of a fee of approximately
USD 80,000 (Ksh 600,000) - a fee which many small parties
complain is prohibitive. The Registrar is entitled to issue
provisional certificates of registration while it considers
an application, but must make a decision within 180 days.
The Registrar is permitted to de-register parties if,
subsequent to registration, they run afoul of the Act's
requirements that parties have a national outlook or fail to
comply with financing rules. The Act recognizes pre- and
post-election coalitions and requires that parties to such
agreements submit a copy to the Registrar. The Act also
recognizes that individual parties may act as "corporate
members" of larger political groupings while maintaining the

NAIROBI 00002696 003 OF 004

ability to maintain their own structures. The Act creates a
Political Party Tribunal (the Tribunal), which is empowered
to hear appeals of decisions of the Registrar. The Tribunal
will decide intra-party disputes, disputes among political
parties, as well as disputes between coalition partners.
Decisions of the Tribunal are final and not subject to

Impact on Parties

11. The Act imposes a number of requirements that will
challenge the way parties do business. Thus it poses
significant challenges to even the biggest parties to ensure
that they comply. For example, few parties, with the
exception of the Kenyan African National Union (which built
up a vast grassroots network over its twenty years of
one-party-rule), have a national network of members and
offices, which requires a significant investment in time and
money. And, even KANU's network has weakened after it lost
its grip on power in 2002. In addition, party governance has
often been weak, with de facto leaders deciding policy in
place of de jure party decision-making bodies. Under the
Act, subversion of de jure party bodies can easily result in
a suit at the Political Parties Tribunal, which promises to
provide a streamlined conflict resolution mechanism.

12. Parties have been used to very lax controls on their
finances and a complete lack of transparency to the public.
Also, many party constitutions do not contain structures that
comply with the Act, forcing these parties to convene party
congresses to amend constitutions and also to hold leadership
elections at the national level. Also, parties need to hold
elections for leadership of district branches, which has
proven a contentious and difficult process. Internal
tensions within parties over the leadership requirements of
the Act are rife as factions jockey for position at both the
national and local levels. Of the more than 300 political
parties currently registered, we expect no more than 30 to
comply with the act.

Struggles to Comply

13. The governing parties, the Orange Democratic Movement
(ODM) and the Party of National Unity (PNU), distracted by
political squabbles and the responsibility of governing, have
yet to come into full compliance with the Act. PNU, formed
as a coalition of parties in the run-up to the 2007
elections, is attempting to turn itself into a true party
with individual members, a laborious and controversial
process. The process hit a roadblock when one of its largest
member parties, NARC-Kenya, announced it would not join PNU
as a party, but would register as an independent party.
NARC-Kenya is the only major party that has complied with the
Act. Undeterred by the NARC-Kenya defection, PNU has been
holding regional membership drives and plans to hold its
local branch elections in early December with its national
election to follow on December 19.

14. ODM, too, has struggled to comply with the Act.
Internal dissent and dissatisfaction with Party leader Raila
Odinga's handling of party matters and divisions over who
should be named Deputy Party Leader has made internal
elections a sensitive matter. Furthermore, Odinga's
insistence, as Prime Minister, that the government evict
Kalenjin settlers from the Mau Forest watershed and the
implement the Waki Report have caused rumors of a walkout by
ODM's Rift Valley leadership, and has furthered delayed party
elections. Currently ODM expects to hold its district
elections in early December with its national convention to
follow. More detailed analysis of the internal party
dynamics affecting PNU, ODM, and other major parties will
follow septel.


15. The Acts sets a worthy goal of creating political
parties that are durable and transparent institutions,
capable of acting as agents of political mobilization on a

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national level. However, it is currently aspirational, and,
to achieve this goal, Kenya's political class - still
dominated by tribal politics and preferring opaque party
governance - will need to undergo a cultural shift that will
take years to accomplish. More immediately, most parties
will need to undertake significant structural changes to
comply with the Act. For the vast majority of parties, this
process will prove too burdensome. We expect no more than 20
parties to remain active.

16. Small parties complain that the Act favors
well-established parties. They claim, rightly, that
registration fees are prohibitive and the requirement that
parties maintain a network of district offices is too
expensive for their limited financial capability. They also
object to the public financing scheme, which rewards
electoral success and which does not aim to level the playing
field for smaller parties. We will not mourn the passing of
most currently-active political parties. However, we note
that these requirements may prove insurmountable barriers to
entry for new parties, which are the lifeblood of democracy.
The role of the Political Registrar and Political Party
Tribunal - which are new institutions and are unlikely to be
affected by the expected reform of the current ECK -- will be
key to make the system function effectively. More
immediately, the Act's provisions that strip wayward
legislators of their seats is likely to play a significant
role in strengthening party discipline in parliament (and
local councils), and thus significantly strengthen the Grand
Coalition's staying power. End Comment.

© Scoop Media

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