Election 2002 
Sunday, December 8, 2002 

There has been some bickering in recent days on the manner in which political parties have carried out nominations ahead of the General Election. It has been termed as an abuse of democracy in some cases and an exercise of tyranny in others. But what is the legal standing of the process used?

Section 34(d) of the Constitution provides that a person shall be qualified to be elected a member of the National Assembly if, and shall not be qualified unless, (amongst other things), "he is nominated by a political party in the manner prescribed by or under an Act of Parliament."

Nomination in accordance with the law is, therefore, a constitutional requirement for eligibility. No one can be elected a Member of the National Assembly who has not been validly nominated by a political party.

Section 17 of the National Assembly and Presidential Elections Act provides that a person shall be deemed to be nominated by a political party for election as a member of the National Assembly if he is selected in the manner provided for in the Constitution or Rules of the political party concerned, and the party certifies the selection to the Electoral Commission.

The nomination will, therefore, not be valid unless both the actions occur - that a person is selected in the manner provided in the constitution and the rules; and the person notified to the Electoral Commission as the authorised person selected by that party. Accordingly, people who may have won in the primaries, whether by secret ballot or mlolongo, but whose names were not certified by the authorised person to the Electoral Commission, were not validly nominated. 

Conversely, those who though not selected in the manner provided for in the party nominating them but were nevertheless certified to the Electoral Commission, were not validly nominated according to law. These, if elected stand to have their nominations challenged and elections nullified on the basis of defective nomination.

In other words, certification of a person cannot substitute for defective nomination. Many Safina candidates stand in this category, particularly because they rushed at the last hour after losing nomination in other parties. They sought nomination by Safina, which was granted in ways that clearly offend the party's rules of selection of candidates. Many of them may be forced to postpone celebration of their election victories until 28 days after the publication of the results of the election or the conclusion of petitions that may be expected to follow from this gross irregularity.

Nomination of a person by a political party is a matter of significant legal import under our law. Section 17(5) of the National Assembly and Presidential Elections Act provides that no person who is elected or nominated as a member of the National Assembly with the support of or as a supporter of a political party (other than the president’s party), shall be appointed a minister of the Government of Kenya without the concurrence of the party which supported him for elections or nominated him for appointment as a member of the National Assembly. 

Recently, we saw the appointment into Government of two MPs - Mr Ngenye Kariuki (Kiharu, supported by Safina Party) and Mr Mwangi Githiomi (Kipipiri, supported by the Democratic Party of Kenya). On appointment, both expressed surprise at their having been chosen to serve as a ministers in President Moi's government, of whose party they were not members.

It would follow that their appointments were not cleared with their respective parties. The appointments would, therefore, have been unlawful and in contravention of Section 16(2) which empowers the President to appoint ministers subject to the provisions of any written law. That written law is section 17(5) which prohibits the appointment as a minister of any person from another party without the concurrence of that party.

As it turned out, these two gentlemen defected, for all intents and purposes to the President’s party on appointment. They have now each sought re-election under Kanu, indicating that they may well have compromised their loyalty to their nominating parties and their integrity as legislators and upholders of the law.

In view of the very mixed bag that the next National Assembly promises to be, loyalty to a member’s nominating party will be high premium. It is important that fidelity be maintained. Hence it is essential that the bickering generated by the nomination be addressed rather than be swept under the carpet. In doing so, it is necessary to remember that the primaries are a process of selection not election. Each party is free to provide a method of making that selection. It is that process that must be adhered to. It is not democracy.

The principle considerations are not to select the most popular contestant amongst the party members. It is to select the most "vote-getting candidate both in the constituency and nationally". The parliamentary contest is constituency-wide and each party aims at coming out tops in that constituency, that is getting its candidate elected. 

That consideration, important though it is, is not the overriding consideration. Each party aims at getting its torch-bearer elected to the office of president. The presidential contest is national and accordingly, a member may have limited constituency appeal and yet have a very large national appeal. She may be unable to get votes for herself and her constituency and yet be one capable of attracting a huge following for the party nationally. She may be a great debater, organiser and yet be a mean contributor to local harambee projects.

In the same way, a person may have a large constituency following secured by his generous provision for them but have little or no commitment to the party. She may be a political nomad who moves with a large herd of "yes people" who adore her and her money, facing a dedicated loyal and committed worker of the party who has spent a lot of his time and resources in the development of the party, and who can be counted upon to support the party in difficult times.

These people are of great value to a party and even where it is perceived that they might lose at popularity contests within the party, the party may well prefer them to a popular journeyman with no commitment who jumps on the party bandwagon for his own convenience and with only the motive of seeking election to Parliament. Where both such members are electable, the party’s selection board may well choose to select the less locally popular but more loyal and committed member instead of the other passerby even though such passerby may have displayed a greater following in the primaries.

A selection board for some of the parties has the final word. It is endowed with the discretion to decide amongst conflicting interests and between two capable candidates which of them should be supported by the party. In so doing, it takes into account the party’s overall objectives and the candidate’s constituency and national standing. It must avoid selecting an unpopular candidate, lest it loses that seat, and is careful to reward party loyalty and commitment. These attributes count for something in a party that hopes to build on the successes of today.

Regrettably, neither Narc nor Kanu was able to explain the actions of their selection boards, whether in making direct nomination or in overruling primaries that yielded results that would undermine the parties. As long as the parties’ constitutions and rules permit direct nominations, orhave power to overrule the result of a primary, the nominations notified to the Electoral Commission are valid and those nominated are entitled to be elected members of the National Assembly.

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The writer is a Nairobi advocate and Director, Intellectual Resources Centre