An important time for any aspirant for political office is Before the Election, During the Election, Results of the Election, Challenges to Elections and being Sworn into office.
All these important events come with potential disputes or challenges that need to be resolved promptly before the aspirant can move to the next stage. Bearing in mind the short and tight timelines allowed.
So how can an aspirant know where to get their dispute resolved. To attempt to approach the wrong place is EXPENSIVE, TIME CONSUMING, and most importantly FRUITLESS. I will set out the 3 common places you can get dispute adjudicated.
BEFORE ELECTION
There are different kinds of disputes that may arise as hereunder:-
A INTERNAL DISPUTE RESOLUTION MECHANISM
Each Party is required by the Political Parties Act 23 Section 9 (i) as read with 2nd Schedule to have an internal dispute resolution mechanism. It is to resolve disputes within the Party. It is established in the Party Constitution. The disputes that can be resolved are with Party members or Party members and officials. Any unsatisfactory decision by the Internal Dispute Resolution Mechanism may be appealed to the Political Party Dispute Tribunal.
B POLITICAL PARTY DISPUTE TRIBUNAL
This is a quasi-judicial tribunal under the Judiciary its mandate is set out in Section 40(1) of the Political Parties Act (https://www.iebc.or.ke/uploads/resources/n7k15EbFt4.pdf) . This Tribunal deals with the following kind of disputes:-
- Between members of a Political Party
- Between members of the Political Party and Political Party
- Between different political parties
- Between an independent candidate and a political party
- Between coalition parties
- Appeals from decisions of the Registrar of Political Parties
- Disputes arising out of party primaries
The Political Party Dispute Tribunal shall require an aspirant to exhaust the Internal Dispute Resolution Mechanism or at least demonstrate an attempt to do so before proceeding to the Political Party Dispute Tribunal. Many cases are thrown out of Political Party Dispute Tribunal on this ground.
The decisions of the Political Party Dispute Tribunal are binding like those of the Magistrates Court decisions. Hence a party can appeal the decision to the High Court and then finally the Court of Appeal.
Disputes by the Political Party Dispute Tribunal are to be finalized within 3 months. The Political Party Dispute Tribunal has made the process of accessing the Tribunal simple and without many technicalities. It uphold the principle of ACCESS TO JUSTICE namely Independence, Expediency, Fair Hearing. To ensure easy access the Tribunal sit regionally and will appoint additional 18 members to ensure that they are able to be more accessible to aspirants.
The decisions of the Tribunal attract sanctions where not obeyed. There are various penalties e.g Kshs.1 Million fine. The Tribunal can make temporary order to protect or maintain the situation. An aspirant is encouraged to have legal counsel or be aware of the Political Party Dispute Tribunal Regulations to proceed in the Tribunal smoothly. The Tribunal endeavors to adhere to STRICT TIMELINES. The Political Party Dispute Tribunal also enforces Memorandum of Understandings or negotiates settlement to give them legal force.
C IEBC (DISPUTE TRIBUNAL)
This is an independent organ of IEBC. Pre-election it resolves disputes like:-
Registrar of Political Parties
This office has various functions to undertake.
A dispute can arise where the Registrar has not performed a particular function. The aspirant must approach the Registrar first before appealing to the Political Party Dispute Tribunal as stated before here.
The function of the Registrar set out in Section 34 of the Political Party Act:-
- Register, regulate, monitor, investigate and supervise political parties to ensure compliance with the Political Parties Act
- Administer the Political Parties Fund
- Ensure publication of audited annual account and political parties
- Verify and make publicly available the list of all members of political parties
- Maintain a register of political parties and the symbols of the political parties
- Ensure and verify that no person is a member of more than one political party and notify the IEBC of its findings
- Investigate complains received under the Political Party Act
- Perform such other functions as may be conferred by the Political Parties Act or any other written law
D. IEBC DISPUTE RESOLUTION COMMITTEE
This is a Committee in IEBC that resolves Pre-election disputes on:-
- Registration of Voters
- Conduct of Election Officials
- Registration of Party Candidates
Previously there was overlap between the IEBC Dispute Resolution Committee and Political Party Dispute Tribunal especially on the challenges the party officials by aspirants/members, breach of interest, party rules, membership of candidates. There is now some clarity on which organ handles which matters. An aspirant should be clear on this to avoid time-wasting.
Generally, the disputes that occur before elections have several forums. Resolution of such disputes is integral at ensuring a candidate is on the ballot box. The post-election disputes are handled by the IEBC Dispute Committee, the High Court, Court of Appeal, and Supreme Court.
Look out for our next article on disputes DURING and AFTER ELECTIONS.
Do you think that Aspirants are aware of the different forums for Dispute Resolution? Share your comments in the comments section.
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