IEBC fines Gikaria Sh2.5mn over Ol Kalou remarks, orders apology and retraction

The Independent Electoral and Boundaries Commission (IEBC) has imposed a significant fine of KSh 2.5 million on Nakuru Town East Member of Parliament David Gikaria for breaching the Electoral Code of Conduct during the Ol Kalou by-election campaigns. The Commission further ordered Gikaria to issue a public apology and retract his contentious remarks within 48 hours, warning of escalated sanctions for non-compliance. The allegations against Gikaria included voter bribery, specifically the distribution of KSh 1.2 million, and misleading voters regarding the requirement for physical National Identity cards at polling stations. This decisive action by the IEBC underscores its commitment to upholding electoral integrity and enforcing strict adherence to campaign regulations, setting a firm precedent for political actors in Kenya.

The Independent Electoral and Boundaries Commission (IEBC) recently delivered a stern message to political actors by fining Nakuru Town East Member of Parliament David Gikaria KSh 2.5 million. This penalty, coupled with an order for a public apology and retraction of remarks made during the Ol Kalou by-election campaigns, highlights the Commission's escalating efforts to enforce the Electoral Code of Conduct. The directive, issued with a strict 48-hour compliance window, also carried a warning of further sanctions should Gikaria fail to adhere, signaling a zero-tolerance approach to electoral malpractices.

This development is particularly significant in the context of Kenya's often contentious electoral landscape, where issues of voter inducement and misinformation can undermine the credibility of democratic processes. The IEBC's action against a sitting Member of Parliament serves as a crucial reminder to all political parties and candidates that the rules governing campaign conduct are not merely advisory but carry serious legal consequences. It reflects a determined push by the electoral body to foster a level playing field and ensure free and fair elections, thereby reinforcing public trust in the electoral system.

The IEBC's ruling against Gikaria, following closely on the heels of a similar fine against another legislator for campaign misconduct in the same by-election, demonstrates a consistent and robust application of electoral laws. This article will delve into the legal framework underpinning the IEBC's powers, analyze the specific violations and the due process followed, and discuss the broader implications for political campaigning and electoral integrity in Kenya.

The Independent Electoral and Boundaries Commission (IEBC) derives its mandate from Article 88(4) of the Constitution of Kenya, 2010, which empowers it to conduct and supervise elections and referenda. Central to its regulatory function is the enforcement of the Electoral Code of Conduct, a comprehensive set of guidelines that all candidates and political parties must subscribe to and observe. This Code, outlined in the Second Schedule of the Elections Act, 2011 (No. 24 of 2011), prohibits various forms of misconduct, including violence, hate speech, bribery, and the abuse of power or state resources for political gain.

Breaches of the Electoral Code of Conduct are addressed under the Election Offences Act, 2016 (No. 37 of 2016). Section 20 of this Act specifically criminalizes contraventions of the Code, stipulating penalties that can include fines or imprisonment. For instance, Section 20(1) prescribes a fine not exceeding one million shillings or imprisonment not exceeding six years, or both, for a nominated candidate who participates in an election without subscribing to the Code. The IEBC's enforcement mechanism includes the Electoral Code of Conduct Enforcement Committee, which is tasked with hearing complaints and imposing sanctions.

This is not an isolated incident of the IEBC taking stringent action. The Commission has recently demonstrated a proactive stance in curbing electoral malpractices. Notably, Kipipiri MP Wanjiku Muhia was also fined KSh 1.5 million for inflammatory remarks made during the same Ol Kalou by-election campaigns, underscoring a pattern of firm enforcement by the IEBC against violations of the Code of Conduct. These actions signal a clear intent by the Commission to hold political actors accountable, irrespective of their stature.

David Gikaria's fine by the IEBC stemmed from allegations of significant breaches of the Electoral Code of Conduct during the Ol Kalou by-election campaigns. The core accusations included assuring voters that they would not be required to present physical National Identity cards to cast their ballots and, more critically, the distribution of KSh 1.2 million in cash. The IEBC's Code of Conduct Enforcement Committee found these actions to be in gross violation of Paragraph 6(i) of the Electoral Code of Conduct, which explicitly prohibits candidates and political actors from using their position or influence to offer rewards or inducements for political benefit.

The due process involved the IEBC's Enforcement Committee summoning Gikaria to answer to the allegations. Despite multiple summonses, Gikaria failed to appear, citing hospitalization, an application for postponement that the Committee dismissed due to the time-sensitive nature of election disputes. This highlights the procedural rigor and urgency with which the IEBC handles electoral complaints, ensuring that delays do not impede the timely resolution of matters affecting ongoing electoral processes. The Committee's powers, as outlined in the Electoral Code of Conduct Enforcement Rules, include the ability to summon individuals and compel the production of relevant documents.

The KSh 2.5 million fine imposed on Gikaria is substantial and reflects the gravity of the electoral offences committed. While Section 20(1) of the Election Offences Act, 2016, specifies a maximum fine of KSh 1 million for not subscribing to the Code, other provisions within the Act, such as those relating to bribery (Section 9) or undue influence (Section 10), or the general penalty clause (Section 24), could justify a higher penalty depending on the specific nature and impact of the breach. The IEBC's decision to also demand a public apology and retraction, along with the threat of disqualification from future elections, demonstrates a comprehensive approach to deterrence and remediation.

The context of the Ol Kalou by-election further illuminates the IEBC's stringent stance. Reports from the Kenya National Commission on Human Rights (KNCHR) indicated widespread electoral malpractices, including violence, voter bribery, and intimidation, which threatened the integrity of the process. In such an environment, the IEBC's firm actions against prominent political figures like Gikaria are crucial for restoring confidence and ensuring that the electoral principles of transparency, accountability, and fairness are upheld. This proactive enforcement signals a shift towards a more robust regulatory regime in Kenyan elections.

Comparatively, the IEBC has been actively seeking enhanced legal powers to address issues like premature campaigns, indicating a desire to further strengthen its enforcement capabilities. This ongoing push for greater authority, coupled with recent rulings, suggests a strategic effort by the Commission to tighten the reins on political conduct and ensure that all electoral activities, from campaigns to polling day, adhere strictly to the law.

The IEBC's decision to fine MP David Gikaria KSh 2.5 million and demand an apology for electoral misconduct in Ol Kalou sends an unequivocal message: adherence to the Electoral Code of Conduct is paramount and will be rigorously enforced. This ruling, alongside other recent sanctions, solidifies the Commission's role as a vigilant guardian of Kenya's electoral integrity, demonstrating its willingness to impose significant penalties on political actors who flout the rules.

For legal practitioners advising political parties and candidates, the implications are clear: strict compliance with the Elections Act, the Election Offences Act, and the Electoral Code of Conduct is non-negotiable. The IEBC's proactive enforcement, coupled with the potential for substantial financial penalties and disqualification from future elections, necessitates a thorough understanding and strict observance of all electoral regulations. Lawyers must emphasize to their clients the importance of ethical campaigning, transparency, and avoiding any actions that could be construed as voter inducement or misinformation. As Kenya approaches future elections, practitioners should anticipate continued vigilance from the IEBC and a sustained commitment to upholding the sanctity of the ballot.