Following the violent incidents reported across several constituencies during the November 27 by-elections, many questions have arisen about the legal options available to the Independent Electoral and Boundaries Commission (IEBC).
Citizens and political observers are particularly concerned about what actions the commission can take against candidates whose supporters were involved in mayhem during the polls.
Reports of clashes and bloodshed began emerging as early as Wednesday night in constituencies considered key battlegrounds between the United Democratic Alliance (UDA) and candidates affiliated with opposition parties.
In Malava, tensions escalated as UDA and opposition supporters exchanged blame over the violence. The unrest was so intense that it threatened to disrupt voting in some areas, raising concerns over the credibility and safety of the by-elections.
This situation naturally leads to a critical question: what does Kenyan law say about politicians who instigate or contribute to violence before or during an election?
The Legal Framework
The Elections Act of 2011 clearly outlines the rules and consequences for candidates who are involved in election-related violence.
- Section 65 of the Act criminalises the “use of force or violence during the election period,” making it illegal for any individual to engage in or promote violent acts while elections are ongoing.
- Section 72 goes further, stating that “A candidate who, during a nomination or an election campaign, engages in or knowingly aids or abets an agent or any person who supports the candidate to engage in bribery, violence, or intimidation … shall be disqualified by the Commission and shall not be eligible to participate in the elections.” This means that anyone caught either directly committing acts of violence or encouraging others to do so can be barred from running.
- Section 66 prohibits candidates from misusing national security agencies to intimidate voters or manipulate election results.
The penalties for violating these provisions range from fines to imprisonment, and, in serious cases, candidates can be disqualified from contesting elections altogether.
Additionally, under its electoral code of conduct, the IEBC has the authority to suspend or ban candidates whose supporters pose a threat to peace and public order.
Practical Implications
While disqualification after voting may seem unlikely, the commission does have the power to nullify election results if investigations confirm that a candidate or their supporters were responsible for causing mayhem. In reality, this process requires thorough investigation and clear evidence, meaning swift action is not always guaranteed.
As of Thursday evening, no investigations had definitively linked any individual candidate to the violence. However, videos circulating online showed certain political aspirants in controversial situations immediately after casting their votes, further complicating the situation.
In response to the unrest, IEBC Chairperson Erastus Ethekon stated that the commission is collaborating closely with the police to ensure that all individuals responsible for violence and chaos during the by-elections are held accountable.
Ethekon also specifically condemned disturbances reported in Kakamega and Homa Bay counties, particularly in Malava and Kasipul constituencies. He emphasized the importance of peaceful elections, stating:
“I strongly condemn all acts of violence, intimidation, or disruption reported in isolated areas during the voting process. Elections are a democratic exercise, and no individual or group has the right to compromise the peace, safety, or integrity of the process.”
The statement serves as a reminder that while electoral violence remains a serious concern, the law provides clear avenues to hold perpetrators accountable and safeguard the democratic process.
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