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Election Campaign Financing Act

The Preamble Of The Act States That The Statute Has Been Put In Place to Provide For The Regulation, Management, Expenditure And Accountability Of Election Campaign Funds During Election And Referendum Campaigns, And For Connected Purposes

These are defined under section 6(1) of the Act as:-

(a) a candidate

(b) an agent of the candidate

(c) political party campaign financing committee which as provided under section 6(2) shall consist of persons nominated by the governing body of that political party, three of whom shall be signatories to the party campaign financing account

(d) referendum campaign financing committee which, as per section 6(3) shall consist of persons nominated by the referendum committee established under section 51(1) of the Elections Act, three of whom shall be signatories to the referendum campaign financing account

  • Under section 6(5) all authorised persons shall be registered by the IEBC. In case of a general election such registration must be done at least eight months before the general election. Where there is a by election, registration of authorized persons shall be done within seven days after the notice of a vacancy issued by the relevant Speaker. In the case of a referendum, registration of authorized persons must be done within fourteen days after the publication of the referendum question by the IEBC.
  • Any changes on the authorized persons must be communicated to IEBC by the candidate, a political party or a referendum campaign financing committee within reasonable time. Section 6(4).
  • Section 6(6) of the Act mandates each of the authorised persons to open a campaign financing account where deposits can be made either by a candidate, a political party or contributions from any other lawful source. the details of this account must be submitted to the IEBC at the time of registration.

The Act is administered by the Independent Electoral and Boundaries commission as provided under section 4(i) of the Independent Electoral and Boundaries Commission Act (Cap…. Of the Laws of Kenya. This mandate is also captured under Article 88(4)(i)

Section 3(1) of the Act lays down the functions of the IEBC where it relates to regulation of election campaign financing which are:-

(a) keep a register of authorised persons under this Act

(b) supervise candidates, political parties, referendum committees and authorised persons in relation to campaign expenses

(c) set spending limits and enforce compliance with such limits

(d) set limits and verify sources of contributions to a candidate, a political party or a referendum committee

(e) monitor and regulate campaign expenses

(f) provide a framework for the reporting of campaign expenses

(g) advise a candidate, a political party or a referendum committee on any matter relating to campaign expenses

h) provide and enforce a framework for the regulation of media coverage; (i) perform such other functions as may be necessary for the purposes of this Act.

 

Section 4 of the Act empowers IEBC to enable it perform its functions effectively and gives it powers to:-

  1. the power to investigate or examine all matters relating to the performance of its functions under this Act-Section 4(1).
  2. at any reasonable time obtain a warrant and enter into any premises in which books, and documents of a candidate, a political party or a referendum committee or where material relevant to the subject matter of the investigation or examination is kept-section 4(2)
  3. request for information relating to party nomination expenses and election campaign expenses of a candidate, a political party or a referendum committee that is reasonably required in respect of the functions of the IEBC(section 4(3) and such information shall be furnished to the Commission by any person or organisation within such reasonable time as the Commission may determine.

 

Under section 5, the Act gives IEBC the power to formulate rules regulating the financing of election campaigns.In the case of a general election, these rules shall be made at least twelve months before the election. In the case of a by-election or referendum, at such time as the Commission may determine.

This is established under section 7(1) which committee shall consist of nine members constituted as follows:-

  1. three of whom shall be persons nominated by the governing body of that political party, of whom one shall be the secretary-general of the party.
  2. not more than one member shall be from one region
  3. not more than two-thirds of whom shall be of one gender.

 

Section 7(2) provides that appointment of members of the referendum expenditure committee shall take into account regional and other diversity of the people of Kenya.

· The members of a party expenditure committee shall not include members of a party candidate expenditure committee-section 7(3).

· Any changes to the constitution of this committee must, as soon as reasonable, be communicated to the IEBC section 7(5).

 

· Under section 7(4) this committee has the following responsibilities:-

a) open a party expenditure committee account into which all the money in respect of the election campaign of that party shall be deposited

(b) be signatories to the party expenditure committee account

(c) advise the political party on all financial matters related to the party nomination or to the party campaign expenditure

(d) manage the party expenditure committee account of the political party and keep the books of account updated and available for inspection

(e) receive party nomination and campaign expenditure reports from each party candidate

(f) monitor the campaign expenditure of the party candidate and ensure that the party candidate complies with party nomination and campaign expenditure rules

(g) compile the expenditure reports received from the party candidates and submit to the Commission the preliminary nomination expenditure report and the final campaign expenditure report

(h) submit to the Commission the final campaign expenditure report of the political party.

 

Section 8 (1) provides for the formulation of an independent candidate expenditure committee in the case of an independent candidate which committee shall consist of three members nominated by the candidate. 

Under section 8(3)the committee has the responsibility to:-

(a) open an independent candidate expenditure committee account into which all the money in respect of the election campaign of that candidate shall be deposited

(b) be signatories to the independent candidate expenditure committee account

(c) advise the independent candidate on all financial matters related to the campaign expenditure

(d) manage the candidate expenditure committee account of the independent candidate and keep the books of account updated and available for inspection

(e) receive expenditure reports from the independent candidate

(f) compile and submit to the Commission the final campaign expenditure report of the independent candidate with respect to the election period.

Section 9(1) of the Act provides for a national referendum committee which shall consist of nine members. The Act provides that three of the members shall be persons nominated by the national committee established under section 51 of the Elections Act and not more than one member shall be from one region. It further provides that not more than two-thirds of the members shall be of one gender.

Changes in the constitution of the committee must be communicated to the IEBC as provided under section 8(5)

Section 8(3) lists the functions of the said committee as follows:-

(a) open a referendum expenditure committee account into which all the money in respect of the referendum campaign shall be deposited

(b) be signatories to the referendum expenditure committee account

(c) advise the national committee on all financial matters related to referendum campaign expenditure

(d) manage the referendum expenditure committee account of the relevant national committee and keep the books of account updated and available for inspection

(e) receive campaign expenditure reports from each constituency committee

(f) monitor the campaign expenditure of the national committee and the constituency committees and ensure that the committees comply with campaign expenditure rules

(g) compile and submit to the Commission the preliminary nomination expenditure report and the final campaign expenditure report.

  • Under section 10(1) of the Act a party candidate shall submit to his or her political party and to the IEBC a preliminary nomination expenditure report, within twenty-one days of the political party nomination, as well as the final expenditure report within, three months after elections.
  • Under section 10(2) a political party must submit a full expenditure report to IEBC within three months after the elections . The same is also required of an independent candidate(section 10 (3) as well as the referendum committee (section 10(4))
  • The report must show all transactions including income and expenditure on the account.

Under section 25(2) any expenditure committee shall stand dissolved on submission of the final expenditure reports

· Section 11- Sources of campaign finances for purposes of financing party nomination, election or referendum campaign include contributions received from any person, political party or any other lawful source, contributions from a lawful source not being directly from a foreign government, and contributions from a harambee.

· Under section 12(1) IEBC is empowered to prescribe limits on total contributions, contributions from a single source, paid-up media coverage, loan forming part of a contribution, which a candidate, political party or referendum committee may receive during the expenditure period. This must be done at least twelve months before a general election, by notice in the Gazette,

· No contribution from a single source shall exceed twenty percent of the total contributions received by that candidate, political party or referendum committee except where contribution is from a candidate to that candidate’s campaign financing account, or from a political party or a referendum committee to that political party’s or referendum committee’s campaign financing account- Section 12(2)

· Section 12(3) The IEBC shall prescribe the limit beyond which contributions received by a candidate, a political party or a referendum committee from a single source may be disclosed.

· Section 13(1) prohibits a candidate, a political party or a referendum committee from receiving and keeping anonymous contributions or support whether in cash or in kind, or contributions from an illegal source as specified by the Act or by any other law

· Section 14(1) prohibits a candidate, a political party or a referendum committee from receiving any contribution or donation, in cash or in kind from the State, a State institution or agency or any other public resource.

· Section 14(2) prohibits a state, a state institution or a public officer from using any public resource to support or to campaign in support of a candidate, a political party or a referendum committee, or support any organisation that is supporting or campaigning for a candidate, political party or a referendum committee.

· Section 14(3) provides that any candidate, political party or a referendum committee that receives any campaign support from a state, state institution or public officer which support is obtained from public resource shall, within forty eight hours of the receipt, report such receipt and submit the contribution to the IEBC.

· Under section 14(4) a candidate, political party or a referendum committee that receives such support from a state, state institution or public officer but does not report receipt of support shall be disqualified from contesting in that election or in the referendum, campaigning as the case may be.

· Public resources referred above does not include public funding provided for the Political Party Fund established under the Political Parties Act-section 14(5).

· Section 15(1) provides that all contributions be made through the specific respective expenditure accounts opened for the said purpose as specified in the Act.

· An organization that intends to campaign in support of a candidate, a political party or a referendum committee is required to seek consent to campaign from the candidate, the political party or the referendum committee as the case may be the organisation intends to campaign in support of-Section 15(2).

· The organization is further required to register with the IEBC and open a campaign financing account into which the contributions shall be deposited. These must be done at least eight(8) months before the polling day in the case of a candidate or a political party committee, or at the time of registration in the case of a referendum committee.

· Section 15(3)- money spent by an organisation to campaign in support of a candidate, a political party or a referendum committee shall be within the spending limits specified under the Act by IEBC

· Under section 15(4) any organisation which campaigns in support of a candidate or a political party contesting in an election or a referendum committee is required to submit its final report to the respective authorised person within one month after the election.

· A receipt must be issued for any contributions received by a candidate, a political party or a referendum committee for any contribution exceeding twenty thousand shillings-section 16(1).

· Where contributions are received from a harambee, the authorized person must be recorded in detail including the venue, date, organizer of the harambee and total contributions-section 16(2)

· Section 16 (3) provides for disclosure by a candidate, political party or a referendum committee regarding the amount and source of contributions received for campaign for a nomination, an election or a referendum, as the case may be.

· Section 16(5) -the disclosure of funds shall be confidential and details of such funds shall not be divulged except where such information is the subject of a complaint or an investigation, or is the subject of court proceedings.

 

· Any surplus campaign funds must be notified to the IEBC within three months after the date of an election or referendum-section 17(1)

· The surplus campaign funds must be submitted to the political party within three months after the date of an election or referendum. Such surplus shall be applied for purposes of the activities of the youth, women and persons with disability-section 17(2)

· In the case of an independent candidate or a referendum committee the surplus campaign funds shall be submitted within three months to a charitable organisation preferred by that independent candidate or referendum committee, as the case may be.

· Section 17(2)(c)- a report must be submitted to IEBC on the action taken with respect to the surplus campaign funds within three months after the date of an election or referendum

 

· Section 18(1) -The IEBC is required to issue regulations on spending limits at least twelve months before an election, by notice in the Gazette. These regulations must include the total amount that a candidate, political party or-referendum committee may spend during an expenditure period and the limit for media coverage. These limits may be varied from time to time (section 18(3))

· Section 18(6)-where a candidate, political party or a referendum committee exceeds the spending limits prescribed due to unforeseeable and extraneous circumstances, the candidate, political party or referendum committee is required to file a report with the IEBC specifying the reasons for exceeding the limit, with such time as the IEBC may prescribe and the IEBC shall make a determination if such spending was justifiable.

· Section 19 empowers the IEBC to prescribe the nature of authorised items or activities for which campaign expenses may be incurred, such as venue, transport, publicity material etc at least twelve months before an election by notice in the Gazette

· Section 20 of the Act provides that the IEBC shall, after consultations with political parties, the officers responsible for the state-owned media enterprises and authorities responsible for the regulation of media in Kenya, set out the limit of media coverage of a candidate, political party or a referendum committee with regard to paid-up advertisement as well as free broadcasting spots or coverage in the print media.

· Section 28(1)- where a person objects to any matter related to campaign finance expenditures submitted by a candidate, political party or a referendum committee he may file a claim to the IEBC in the prescribed form and manner and within the prescribed time. Such claims shall be determined within seven days, if filed before an election, or within fourteen days, if filed after an election

 

 

· Section 21(1) Any person may lodge a complaint with the IEBC alleging that a breach of the Act has been committed and IEBC may conduct investigations regarding the complaint.

· Under section 21(3) the IEBC is required to hear and determine a complaint within seven days, if filed before an election, or within fourteen days, if filed after an election.

· Section 21(4) vests the IEBC with powers to request for the attendance of any person believed to have information related to the complaint or call for any information believed to be relevant in the determination of the complaint.

· Where it is found that a breach of the provisions of the Act has indeed occurred, the IEBC may make any of the following orders under section 21(5):-

(a) order the rectification of any record

(b) issue a formal warning

(c) impose a fine as may be specified under the regulations

(d) prohibit the errant candidate, political party or referendum committee from campaigning for a specified period or within a specified area

(e) prohibit media coverage of the errant candidate, political party or referendum committee within a specified period

(f) disqualify the errant candidate, political party or referendum committee from contesting in that election or referendum, as the case may be.

Section 21(6) -where the offence is discovered after an election and an order of disqualification is made, the candidate or the political party shall be disqualified from contesting in the subsequent by- election or general election. Such an order shall be registered in the High Court, in the case of presidential, parliamentary, governor elections or referendum, or registered in the resident magistrate’s court in the case of county assembly elections-section 21(7).

 

Section 26- a candidate, a political party, a referendum committee or an organization registered to campaign in support of a candidate, a political party or a referendum committee shall keep records of nature and amount of funds received for campaign expenses , names and, postal, physical and electronic addresses of contributors, all expenditure and ,the name of the candidate, the political party or the referendum committee that the organization supported.

 

Section 26 (2) –the IEBC shall on request, make available for inspection information submitted by a candidate, a political party or a referendum committee under the Act, subject to confidentiality requirements of the IEBC.

 

Section 27--the Auditor-General may, on the request by IEBC audit the accounts relating to the campaign expenses of a candidate, a political party or a referendum committee.

 

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