Kenya 2010 Constitution

CHAPTER 7. REPRESENTATION OF THE PEOPLE

Part 1. Electoral System and Process

81. General principles for the electoral system

The electoral system shall comply with the following principles-

1. freedom of citizens to exercise their political rights under Article 38;
2. not more than two-thirds of the members of elective public bodies shall be of the same gender;
3. fair representation of persons with disabilities;
4. universal suffrage based on the aspiration for fair representation and equality of vote; and
5. free and fair elections, which are-
   1. by secret ballot;
   2. free from violence, intimidation, improper influence or corruption;
   3. conducted by an independent body;
   4. transparent; and
   5. administered in an impartial, neutral, efficient, accurate and accountable manner.

82. Legislation on elections

1. Parliament shall enact legislation to provide for-
   1. the delimitation by the Independent Electoral and Boundaries Commission of electoral units for election of members of the National Assembly and county assemblies;
   2. the nomination of candidates;
   3. the continuous registration of citizens as voters;
   4. the conduct of elections and referenda and the regulation and efficient supervision of elections and referenda, including the nomination of candidates for elections; and
   5. the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote.
2. Legislation required by clause (1) (d) shall ensure that voting at every election is-
   1. simple;
   2. transparent; and
   3. takes into account the special needs of-
      1. persons with disabilities; and
      2. other persons or groups with special needs.

83. Registration as a voter

1. A person qualifies for registration as a voter at elections or referenda if the person-
   1. is an adult citizen;
   2. is not declared to be of unsound mind; and
   3. has not been convicted of an election offence during the preceding five years.
2. A citizen who qualifies for registration as a voter shall be registered at only one registration centre.
3. Administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election.

84. Candidates for election and political parties to comply with code of conduct

In every election, all candidates and all political parties shall comply with the code of conduct prescribed by the Independent Electoral and Boundaries Commission.

85. Eligibility to stand as an independent candidate

Any person is eligible to stand as an independent candidate for election if the person-

1. is not a member of a registered political party and has not been a member for at least three months immediately before the date of the election; and
2. satisfies the requirements of-
   1. Article 99 (1) (c) (i) or (ii), in the case of a candidate for election to the National Assembly or the Senate, respectively; or
   2. Article 193 (1) (c) (ii), in the case of a candidate for election to a county assembly.

86. Voting

At every election, the Independent Electoral and Boundaries Commission shall ensure that-

1. whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
2. the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;
3. the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and
4. appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

87. Electoral disputes

1. Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.
2. Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.
3. Service of a petition may be direct or by advertisement in a newspaper with national circulation.

Part 2. Independent Electoral and Boundaries Commission and Delimitation of Electoral Units

88. Independent Electoral and Boundaries Commission

1. There is established the Independent Electoral and Boundaries Commission.
2. A person is not eligible for appointment as a member of the Commission if the person-
   1. has, at any time within the preceding five years, held office, or stood for election as-
      1. a member of Parliament or of a county assembly; or
      2. a member of the governing body of a political party; or
   2. holds any State office.
3. A member of the Commission shall not hold another public office.
4. The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for-
   1. the continuous registration of citizens as voters;
   2. the regular revision of the voters’ roll;
   3. the delimitation of constituencies and wards;
   4. the regulation of the process by which parties nominate candidates for elections;
   5. the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;
   6. the registration of candidates for election;
   7. voter education;
   8. the facilitation of the observation, monitoring and evaluation of elections;
   9. the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;
   10. the development of a code of conduct for candidates and parties contesting elections; and
   11. the monitoring of compliance with the legislation required by Article 82 (1) (b) relating to nomination of candidates by parties.
5. The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation.

89. Delimitation of electoral units

1. There shall be two hundred and ninety constituencies for the purposes of the election of the members of the National Assembly provided for in Article 97 (1) (a).
2. The Independent Electoral and Boundaries Commission shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than twelve years, but any review shall be completed at least twelve months before a general election of members of Parliament.
3. The Commission shall review the number, names and boundaries of wards periodically.
4. If a general election is to be held within twelve months after the completion of a review by the Commission, the new boundaries shall not take effect for purposes of that election.
5. The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota, but the number of inhabitants of a constituency may be greater or lesser than the population quota in the manner mentioned in clause (6) to take account of-
   1. geographical features and urban centres;
   2. community of interest, historical, economic and cultural ties; and
   3. means of communication.
6. The number of inhabitants of a constituency or ward may be greater or lesser than the population quota by a margin of not more than-
   1. forty per cent for cities and sparsely populated areas; and
   2. thirty per cent for the other areas.
7. In reviewing constituency and ward boundaries the Commission shall-
   1. consult all interested parties; and
   2. progressively work towards ensuring that the number of inhabitants in each constituency and ward is, as nearly as possible, equal to the population quota.
8. If necessary, the Commission shall alter the names and boundaries of constituencies, and the number, names and boundaries of wards.
9. Subject to clauses (1), (2), (3) and (4), the names and details of the boundaries of constituencies and wards determined by the Commission shall be published in the Gazette, and shall come into effect on the dissolution of Parliament first following their publication.
10. A person may apply to the High Court for review of a decision of the Commission made under this Article.
11. An application for the review of a decision made under this Article shall be filed within thirty days of the publication of the decision in the Gazette and shall be heard and determined within three months of the date on which it is filed.
12. For the purposes of this Article, “population quota” means the number obtained by dividing the number of inhabitants of Kenya by the number of constituencies or wards, as applicable, into which Kenya is divided under this Article.

90. Allocation of party list seats

1. Elections for the seats in Parliament provided for under Articles 97(1) (c) and 98 (1) (b), (c) and (d), and for the members of county assemblies under 177 (1) (b) and (c), shall be on the basis of proportional representation by use of party lists.
2. The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of elections for seats provided for under clause (1) and shall ensure that-
   1. each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats provided for under clause (1), within the time prescribed by national legislation;
   2. except in the case of the seats provided for under Article 98 (1) (b), each party list comprises the appropriate number of qualified candidates and alternates between male and female candidates in the priority in which they are listed; and
   3. except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya.
3. The seats mentioned in clause (1) shall be allocated to political parties in proportion to the total number of seats won by candidates of the political party at the general election.

Part 3. Political Parties

91. Basic requirements for political parties

1. Every political party shall-
   1. have a national character as prescribed by an Act of Parliament;
   2. have a democratically elected governing body;
   3. promote and uphold national unity;
   4. abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party;
   5. respect the right of all persons to participate in the political process, including minorities and marginalised groups;
   6. respect and promote human rights and fundamental freedoms, and gender equality and equity;
   7. promote the objects and principles of this Constitution and the rule of law; and
   8. subscribe to and observe the code of conduct for political parties.
2. A political party shall not-
   1. be founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis;
   2. engage in or encourage violence by, or intimidation of, its members, supporters, opponents or any other person;
   3. establish or maintain a paramilitary force, militia or similar organisation;
   4. engage in bribery or other forms of corruption; or
   5. except as is provided under this Chapter or by an Act of Parliament, accept or use public resources to promote its interests or its candidates in elections.

92. Legislation on political parties

Parliament shall enact legislation to provide for-

1. the reasonable and equitable allocation of airtime, by State owned and other mentioned categories of broadcasting media, to political parties either generally or during election campaigns;
2. the regulation of freedom to broadcast in order to ensure fair election campaigning;
3. the regulation of political parties;
4. the roles and functions of political parties;
5. the registration and supervision of political parties;
6. the establishment and management of a political parties fund;
7. the accounts and audit of political parties;
8. restrictions on the use of public resources to promote the interests of political parties; and
9. any other matters necessary for the management of political parties.