Political campaigns outside election period unconstitutional, court says

The High Court ruled that carrying out political campaigns outside the election period is unconstitutional.

The court further directed the Attorney General (AG) to take the necessary steps, within 12 months, to enact a law governing political campaigns conducted outside the election period.

“This law is expected to bring order, fairness, and legal clarity to the political landscape,”court noted

The court said it is unconstitutional for public officers to engage in political activities while still in office.

In a decision delivered by a three judge bench, the court declared that early political campaigns violate multiple fundamental rights enshrined in the Constitution.

Among the rights affected are the right to equality and equal protection of the law, the right to life, freedom from violence, the principle of impartiality, the right to development, the rule of law, and the right to free and fair elections.

The court said allowing political campaigns to proceed unchecked outside the electoral calendar gives an unfair advantage to well-resourced or incumbent candidates and exposes the public to disorder and violence.

“This political season should not be a continuous situation. There is need for the country to take a break from political campaigns and concentrate on development of the nation and the wellbeing of its citizens,” the court said.

Justice Hedwig Ongundi, Patricia Gichohi and Heston Nyaga ruled that any public officer who wishes to run for Parliament must resign at least six months before the election.

The judges said public officers who fail to adhere to this requirement should face “consequences set out in law or code of conduct.”

Seven months before the election date is sufficient time for them to prepare themselves to meet their fate at the election box. A longer period would be unreasonable and a shorter period would be more unreasonable,” the court said.

In the case filed by Kituo Cha Sheria, the petitioner argued that the failure by key state agencies to act against early campaigning undermined the Constitution and violated the African Charter on Human and Peoples’ Rights.

The petition alleged that several presidential aspirants and political parties began campaign activities long before the gazetted official campaign period of May 29 to August 6, 2022, as set out by the Independent Electoral and Boundaries Commission (IEBC).

The petitioner argued that this early campaigning was illegal and had far-reaching negative consequences for governance, public services, and the economy.

The petitioner claimed that campaigns outside the prescribed period heightened tension, increasing the likelihood of violence leading up to the election and also negatively affecting economic development due to a prolonged electioneering frenzy, which is unconducive for investments and development.