Published on October 17, 2007, 12:00 am
By Gakuu Mathenge and Patrick Muriungi
The Electoral Commission of Kenya (ECK) has released a circular that threatens to put the fledgling efforts to craft a pro-Kibaki re-election alliance into a spin.
The ECK chairman, Mr Samuel Kivuitu, fished out a constitutional provision that had been ignored in past General Elections, but which he says all parties must follow.
“…This is the supreme law of the land and must be observed by all…” Kivuitu says, in the circular dated October 12 and sent to all political parties.
If enforced, the Kibaki re-election strategy team would have to return to the drawing board and overhaul the entire blueprint that has all affiliate parties backing the Head of State not fielding presidential candidates.
In the circular, Kivuitu lays down the law thus: “Section 5 of the Constitution of Kenya makes the basic provisions on the elections of a president of the Republic of Kenya … whenever Parliament is dissolved, an election of a president shall be held at the ensuing General Election. Each political party taking part in the General Election shall nominate one candidate for president in such a manner as may be prescribed by or an act of parliament…”
Kivuitu further warns: “Debates have been going on, on how to bring about political alliances while ensuring that only one candidate is nominated for the election as president. ECK would like those involved in these debates and all the voters to always bear in mind that this is the supreme law of the land and must be observed by all…”
The immediate and worrying implication of the law is that it would bar registered political parties under the PNU alliance from fielding a joint presidential candidate.
The circular, that is stamped ‘URGENT’, is likely to hit parties allied to PNU hardest, given that some of them have announced they would support President Kibaki as a presidential candidate but field parliamentary and civic candidates independently.
They include Kanu (Mr Uhuru Kenyatta), Narc-Kenya (Mr Raphael Tuju), Ford-Kenya (Mr Musikari Kombo), Shirikisho Party of Kenya (Mr Chirau Ali Mwakwere), Safina (Mr Paul Muite) and New Ford-Kenya (Mr Soita Shitanda).
Fuel further storm brewing in PNU
This new development could further fuel a storm already brewing in the Kibaki camp over nominations by PNU affiliate parties.
While, Kanu — which is being treated as a partner in the alliance — appears to have cut itself a good deal under the PNU arrangement and was accorded the preferential treatment of being allowed to field its own parliamentary and civic candidates. Other affiliates enjoy no such privileges, making them feel short-changed.
Like Kanu, which threw its lot with PNU on condition that it preserves its identity, the other affiliates are also concerned that by being denied the chance to field their own candidates, they risked obliterating themselves from the political map, hence the disquiet.
Last night, legal opinion was sharply divided on the Kivuitu circular, with the Orange Democratic Movement (ODM) vice-chairman, Mr Mugambi Imanyara, saying parties that do not present presidential candidates must be disqualified.
“The law is clear and self-explanatory. The fact that it has not been applied does not mean it cannot be enforced now or any other time. Those who were not caught in the past should consider themselves lucky,” he said, when reminded parties like Safina and others have always fielded parliamentary and civic candidates without presidential candidates.
However, the Democratic Party of Kenya Secretary-General, Mr George Nyamweya, dismissed Kivuitu’s circular as “mischievous and aimed at diverting the mighty river that various parties have been building by joining PNU”
In a telephone interview, Nyamweya added: “Even in law school, they teach you that you must always look for the simplest interpretation of a law, not the most complex. The law is made for men and women and not the other way round. This is mischief meant only to derail PNU”.
Field joint candidates through PNU
DP, Narc-Kenya and Ford-Kenya have agreed to field joint candidates through PNU, but Kanu was exempted and allowed to field its candidates that sail past a joint (PNU) nomination under Kanu.
The ECK’s circular is likely to throw a spanner into the works, especially for Kanu and party chairman Uhuru — who has substantial stakes in the coming poll — and prospects of disqualification are unthinkable.
But Nyamweya was adamant, arguing: “No law can force you to do anything you do not have to, like stopping you from fielding civic candidates if you do not have a presidential aspirant. I am also a lawyer and I know what all PNU affiliate parties have done by nominating Kibaki as their presidential candidate is within the law”.
Imanyara, a lawyer, said on Tuesday: “By law, the parties under PNU must present their individual presidential candidates to the commission for nomination once Parliament is dissolved. This particular law is very clear and one wonders why some parties were allowed to break it during the 2002 General Election. ECK must implement it to the letter and nobody should be exempted from it,” said Imanyara.
The options for affected parties is to dissolve and go into the General Election under PNU as a political party, but that would present peculiar problems for parties like Kanu, whose interests span beyond the coming poll. Kanu could not be reached for comment last night.