Gachagua faults Ethekon over poll cancellation threat, urges action against voter bribery by State officials

The recent accusations by former Deputy President Rigathi Gachagua against the Independent Electoral and Boundaries Commission (IEBC) Chairperson, Erastus Ethekon, regarding a potential election cancellation and alleged voter bribery by State officials, highlight critical legal challenges to Kenya's electoral integrity. This article examines the statutory and constitutional framework governing election postponements and electoral offences, particularly voter bribery and the use of public resources by State officers. It delves into the IEBC's powers under the Elections Act and the Election Offences Act, emphasizing the strict conditions for deferring polls and the severe penalties for electoral malpractices. The discussion underscores the imperative for the electoral body to uphold its independence and enforce the law impartially, ensuring free, fair, and credible elections in line with constitutional principles, and the role of legal professionals in safeguarding these processes.

Kenya's electoral landscape is frequently marked by intense political contestation, with allegations of malpractice often surfacing during critical election periods. A recent statement by former Deputy President Rigathi Gachagua, accusing the Independent Electoral and Boundaries Commission (IEBC) Chairperson, Erastus Ethekon, of threatening to cancel an upcoming by-election to favour the ruling party, has once again brought the integrity of the electoral process into sharp focus. Gachagua further alleged widespread voter bribery by State officials, urging the IEBC to take decisive action rather than contemplate postponement.

These accusations raise fundamental legal questions concerning the powers of the electoral commission to postpone or cancel elections, the definition and prosecution of electoral offences such as voter bribery, and the permissible conduct of State officers during election campaigns. The controversy underscores the delicate balance between political rhetoric and the strict adherence to electoral laws designed to ensure free, fair, and credible elections. For legal practitioners, understanding the precise legal parameters governing these issues is crucial for advising clients, engaging in electoral dispute resolution, and advocating for the rule of law in democratic processes.

This article aims to dissect the legal framework surrounding election postponements and electoral offences in Kenya. It will explore the constitutional and statutory provisions that empower the IEBC, define electoral malpractices, and regulate the conduct of public officers. By examining these legal aspects, the article seeks to provide clarity on the responsibilities of the electoral body and the accountability of political actors, offering insights into the legal implications of such allegations for Kenya's democratic governance.

The Independent Electoral and Boundaries Commission (IEBC) is established under Article 88(1) of the Constitution of Kenya, 2010, as an independent regulatory agency responsible for conducting or supervising referenda and elections to any elective body or office. Its mandate includes the continuous registration of voters, delimitation of constituencies, regulation of political parties, settlement of electoral disputes (excluding election petitions), and the development and monitoring of a code of conduct for candidates and parties. The IEBC is constitutionally mandated to exercise its powers and perform its functions in accordance with the Constitution and national legislation, free from direction or control by any person or authority.

The legal framework for elections in Kenya is primarily enshrined in the Elections Act, 2011, and the Election Offences Act, 2016. The Elections Act, particularly Section 55B, outlines the specific circumstances under which the Commission may postpone an election in a constituency, county, or ward. These grounds include a serious breach of peace, impossibility to conduct elections due to natural disaster, or electoral malpractice of such a nature and gravity as to make it impossible for an election to proceed. This provision is critical as it delineates the limited and justifiable reasons for deferring an election, emphasizing that such discretion must be exercised judiciously and not for political expediency. Historically, the Supreme Court has also been involved in decisions regarding election postponements, particularly in complex scenarios.

Regarding electoral offences, the Election Offences Act, 2016, provides a comprehensive framework. Section 9 of the Act specifically addresses bribery, defining it broadly to include directly or indirectly offering a bribe to influence a voter to vote or refrain from voting for a particular candidate or political party, or to influence attendance at political events. The Act also criminalises the use of public resources for campaigning (Section 14) and regulates the participation of public officers in elections (Section 15), prohibiting them from engaging in partisan political activities that could compromise their neutrality. These provisions are reinforced by Article 77(2) of the Constitution and Section 23 of the Leadership and Integrity Act, which prohibit appointed State officers from holding office in a political party or engaging in political activities that compromise their neutrality.

The allegations by former Deputy President Gachagua touch upon two critical aspects of electoral law: the power of the IEBC to postpone elections and the prevalence of voter bribery, particularly by State officials. The IEBC's power to postpone elections, as stipulated in Section 55B of the Elections Act, is not unfettered. The grounds for postponement are narrowly defined, requiring compelling evidence of a serious breach of peace, a natural disaster, or electoral malpractice of such gravity that it renders the conduct of a free and fair election impossible. The IEBC Chairperson, Erastus Ethekon, has indeed warned that the commission could postpone or cancel the Ol Kalou by-election if insecurity and breaches of the electoral code of conduct persist, citing incidents of violence, voter bribery, and destruction of campaign materials.

However, the political accusation that such a threat is a calculated move to shield a particular party from defeat raises concerns about the IEBC's independence, a cornerstone of its constitutional mandate under Article 88. The perception of impartiality is as crucial as actual impartiality. Any decision to postpone an election must be demonstrably based on the objective criteria outlined in the law, supported by verifiable evidence, and communicated transparently to maintain public confidence. The Supreme Court of Kenya has previously affirmed the IEBC's power to postpone elections under Section 55B, but also highlighted the need for such decisions to be consistent with constitutional principles.

The issue of voter bribery is a pervasive electoral offence in Kenya, explicitly prohibited by Section 9 of the Election Offences Act. The Act broadly defines bribery to include offering inducements to influence voting behaviour or participation in political events. Penalties for conviction can include imprisonment for up to six years or a fine not exceeding two million shillings, or both. Furthermore, a person convicted of an offence under this Act may be ineligible for election or nomination for five years. The allegations of State officials engaging in voter bribery using public resources are particularly grave. Section 14 of the Election Offences Act prohibits the use of public resources for campaigning, and Section 15 restricts the participation of public officers in political activities. Article 77(2) of the Constitution and Section 23 of the Leadership and Integrity Act reinforce the principle of political neutrality for appointed State officers, prohibiting them from acting as agents for political parties or candidates or manifesting support or opposition. The IEBC has a code of conduct for candidates and parties, and breaches can lead to sanctions, including disqualification.

While the IEBC is empowered to investigate electoral malpractices and enforce the Electoral Code of Conduct, the prosecution of electoral offences primarily rests with the Director of Public Prosecutions. The challenge often lies in the enforcement of these laws, with governance experts noting that despite adequate legal provisions, inconsistent enforcement remains a significant hurdle. The involvement of State officials in partisan politics, especially through alleged voter bribery, not only undermines the integrity of the specific election but also erodes public trust in democratic institutions and the principle of political neutrality of the public service. Legal professionals must therefore advocate for robust enforcement mechanisms and accountability for all actors, irrespective of their political affiliation or public office.

The recent political pronouncements regarding potential election postponements and allegations of voter bribery by State officials underscore the persistent fragility of electoral integrity in Kenya. For legal practitioners, these developments highlight the critical importance of a thorough understanding of the constitutional and statutory frameworks governing elections. The IEBC's powers to postpone elections are circumscribed by law, requiring objective and verifiable grounds, and any deviation from these strictures risks undermining the commission's independence and the credibility of the electoral process. Similarly, voter bribery and the misuse of public resources by State officers constitute serious electoral offences with significant legal consequences, demanding rigorous investigation and prosecution.

Practitioners must remain vigilant in monitoring the IEBC's adherence to its mandate and advocating for the impartial enforcement of electoral laws. The allegations against State officials necessitate a robust response from investigative and prosecutorial bodies to ensure accountability and uphold the principles of leadership and integrity enshrined in the Constitution. Moving forward, the focus must be on strengthening institutional independence, enhancing transparency in electoral management, and ensuring that all political actors, including those in public office, operate within the confines of the law to foster a truly free, fair, and credible electoral environment in Kenya. The legal community has a vital role to play in defending these democratic tenets and ensuring that justice prevails in electoral disputes.