Election violence: What the law says

By Boniface Manyala
Publication date: September 10, 2007

The degrading and heinous attack on North Imenti parliamentary aspirant Ms. Flora Igoki Tera near her home on Friday 7th this month is a pointer to ugly situations that might bedevil this country as we edge close to elections. This incident should be condemned in the strongest sense possible.

Credible elections are the cornerstone of democracy. They are an effective mechanism for affording citizens an opportunity to make their choices as to who is to govern them. The Law mandates the Electoral Commission of Kenya (ECK) to undertake the General elections and take the necessary measures to ensure that the elections are transparent, free and fair.

During elections, aspirants engage in campaign rallies to sell their policies and ideas to the voters who in turn are expected to support their point of view or differ with the same.
 
 It is obvious that during this period, different persons have different opinions and principles which might lead to disagreement. Voters, as a rule must observe peace.

Although the Electoral Code of conduct instructs the participating candidates to solve their own conflicts, the ECK takes it upon itself to facilitate peaceful campaigns through establishment of Constituency Peace Committees to engender transparent, free and fair elections.

The challenge is complex and demanding and increasingly requires innovative intervention. Historically, electoral laws have cast the police and courts as appropriate instruments to deal with aberrant conduct.

While the courts most certainly have an important role, they are often unable to respond quickly and decisively to spontaneously contain actual or imminent conflict situation.

Under the Electoral code of conduct, the following conflict management and resolution mechanisms apply:-

Use of the Electoral Code of Conduct, Enforcement Committee, Mediation and Liaison Consultative meetings.

The law governing elections in Kenya are not contained in one single Document. The National Assemblies and Presidential Elections Act and its regulations apply to the General Elections as provided for unless otherwise stated in the Elections Regulations Legal Notice number 100 (2005) Act.

Elections are held under various laws and regulations. The key ones are:-
The Constitution of Kenya; The National Assembly and Presidential Elections Act; Constitution of Kenya Review (Amendment) Act and Regulations; The Election Offences Act; The Kenya Broadcasting Corporation Act; The Public Order Act; The Penal Code; and The Police Act;

There are a number of legal provisions that deal with conflict management and resolution in electoral processes. For the purpose of this article we emphasize two provisions.

The Police Act

All electoral laws deal fully with the role the Kenya Police play in the protection and strengthening of democracy. The duties, power and rights of the Police are more specifically contained in the Police Act.

The Act under section 14(ii) provides for the functions of the Force as maintenance of law and order, the preservation of peace, the protection of life and property, the prevention and detection of crime, apprehension of offenders and enforcement of all laws and regulations with which it is charged.

The Electoral Code of Conduct

The Code of conduct binds candidates participating in the election and obliges them to:-
Condemn, avoid and take steps to prevent violence and intimidation, and to avoid the use of abusive language that may lead to violence or intimidation;

Affirm the rights of all participants in an election to express divergent political opinions and accordingly debate and contest the policies of elections and to do nothing to impede the rights of the other aspirant;

Canvass freely for membership and have access to voters for the purpose of voter education, fundraising and soliciting support;

 Hold public meetings and ensure that no arms or weapons are carried or displayed at meetings and to avoid rallies taking place at the same time and venue as meeting or organized by the other aspirant. Distribute non- offensive election literature and campaign materials and avoid plagiarizing the symbol, color or acronyms of the other aspirant or the removal and disfiguration of campaign materials of the other sides;
Promote free electoral campaigns by all lawful means and refrain from offering any inducement or reward to any person in consideration of such person joining a party.

The attack on Ms Tera should serve as a wake up call to the ECK and Kenyans to be vigilant and observe the Electoral code of conduct.