VZCZCXRO3700
PP RUEHROV
DE RUEHNR #2696/01 3370932
ZNR UUUUU ZZH
P 020932Z DEC 08
FM AMEMBASSY NAIROBI
TO RUEHC/SECSTATE WASHDC PRIORITY 7780
INFO RUCNIAD/IGAD COLLECTIVE
RUEHDR/AMEMBASSY DAR ES SALAAM 6200
RUEHLO/AMEMBASSY LONDON 2985
RUEHFR/AMEMBASSY PARIS 2878
RHMFIUU/CDR USCENTCOM MACDILL AFB FL
RHMFIUU/CJTF HOA

UNCLAS SECTION 01 OF 04 NAIROBI 002696 
 
SIPDIS 
 
LONDON AND PARIS FOR AFRICA WATCHERS 
 
E.O. 12958: N/A 
TAGS: PGOV PREL KDEM KE
SUBJECT: PARTIES SCRAMBLE TO COMPLY WITH POLITICAL PARTIES 
ACT 
 
REF: NAIROBI 2613 
 
------- 
 COMMENT 
 ------- 
 
¶1.  Kenya's notoriously disorganized political parties are 
scrambling to comply with a series of administrative, 
organizational, and financial requirements imposed by the 
Political Parties Act (the Act) before the December 31 
deadline.  The Act aims to bring much-needed order to Kenya's 
party system, long characterized by moribund party 
structures, murky finances, and a lack of transparency.  Most 
major parties have yet to comply with the Act (reftel).  The 
governing parties, the Orange Democratic Movement (ODM) and 
the Party of National Unity (PNU), are scrambling to 
transform their structures and overcome internal political 
issues to comply (septel).  The Act is no panacea for what 
ails Kenya's political system, but it is a good start to 
curbing disruptive behavior among elected officials and to 
achieving more functional and better regulated parties, keys 
to Kenya's democratic consolidation.  End Comment. 
 
------------------------- 
The Political Parties Act 
------------------------- 
 
¶2.  After multi-party politics came to Kenya in 1992, 
political parties mushroomed. By 2007 over 300 political 
parties were registered; 117 took part in last year's general 
election.  Many parties were dormant between elections and 
emerged at election-time for the sole purpose of collecting 
fees (essentially bribes) from aspiring candidates in 
exchange for a place on the party ticket.  Even 
well-established parties have weak institutional capacity and 
opaque governance practices; often they served as little more 
than personal vehicles for their leader.  The Societies Act 
under which parties previously registered provided a weak 
legal framework for regulating political parties and imposed 
few requirements for a party to continue its existence. 
Political parties financing was opaque and not subject to any 
disclosure requirements.  The absence of public party 
financing led many office holders to resort to corrupt public 
dealings to finance their political parties.  The Goldenberg 
and Anglo-Leasing scandals were, in part, driven by the need 
for campaign slush funds.  In addition, elected officials 
switched parties frequently with impunity, weakening party 
discipline, a key to a functional parliament.  Furthermore, 
after the failed constitutional referendum of 2005, 
opposition Members of Parliament joined the government in 
defiance of their party, blurring the lines between 
government and opposition. 
 
¶3. Civil society realized that strong, transparent, and 
capable political parties are critical to entrenching 
democracy.  It had been advocating, unsuccessfully, for 
framework legislation to regulate better political party 
governance and finances since the advent of multi-party 
politics.  The movement gained critical mass in 2005, when a 
number of non-governmental organizations, with USG financial 
support, formed the Coalition for Accountable Political 
Financing to lobby for legislation to make more transparent 
the operations and financing of political parties.  The 
resulting Political Parties Act (the Act), enacted in October 
2007, was signed into law by President Kibaki in March 2008. 
It came into force on July 1. 
 
----- 
Goals 
----- 
 
¶4.  The Act's primary goals are to promote political parties 
with national outlooks and membership, with transparent 
internal governance structures and financing, and that hold 
regular and transparent intra-party elections.  The Act 
treats political parties as quasi-public institutions; it 
increases record-keeping requirements for parties and 
mandates annual audits of party finances, which must be made 
public.  It forbids civil servants and army personnel from 
serving as founding members of parties or holding party 
office, as well as actively engaging in political party 
activity or publicly endorsing candidates.  The Act also bans 
civil servants from political activity which gives the 
appearance of compromising the political neutrality of the 
 
NAIROBI 00002696  002 OF 004 
 
 
civil servant.  It addresses gender balance by requiring that 
each gender be represented in at least one-third of party 
leadership positions. 
 
¶5. The Act regulates behavior of elected officials in 
important ways; it prevents opposition politicians from 
accepting positions in government without their party 
approval, and declares vacant elected offices when the holder 
resigns from the party which supported his/her election bid. 
The latter provides a particularly strong incentive to 
maintain party loyalty; no incumbent wants to face an 
electorate that rejected 70 percent of incumbent MPs at the 
2007 general election. 
 
¶6.  To achieve its goals, the Act forbids party names which 
hint at exclusiveness on tribal, regional, gender or other 
grounds.  It also requires parties to have at least 200 
members in each province, and at least one founding member in 
each of Kenya's 149 districts, the political subdivision 
directly below the province.  The Act also requires parties 
to maintain a national network of offices.  To strengthen 
internal governance of parties, the Act requires that each 
party amend its constitution to provide for, among other 
things: the composition and powers of the governing party 
bodies, the titles of officers, terms of office and method of 
election, appointment, and dismissal of party officers.  It 
also requires parties to state clearly the procedures for 
amending constitutions.  Each of these issues have bedeviled 
parties under the more lax registration the Societies Act 
provided, often resulting in lawsuits. 
 
-------------- 
Finance Reform 
-------------- 
 
¶7.  The Act allows parties to fund-raise through membership 
fees and donations by private individuals.  It caps 
individual donations at approximately USD 60,000 per year 
(5,000,000 Ksh), although the Act allows a one-time exemption 
for founding members to donate in excess of the limit in the 
first year of registration under the Act.  Parties are banned 
from accepting donations from non-Kenyans, as well as from 
Kenyan and international non-governmental organizations. 
 
¶8.  The Act creates a Political Parties Fund (the Fund) that 
will be financed through the government's budget.  The Fund 
will be allocated as follows:  15 percent of the Fund will be 
distributed equally among all eligible political parties; 80 
percent of the Fund will be distributed to parties 
proportional to the total number of votes secured at the last 
general election by party candidates at all levels; and, five 
per cent of the Fund will be used to cover administrative 
costs. 
 
¶9.  Parties are required to make annual public disclosures of 
all donations, from any source.  The accounts of each party 
will be audited every year by the government's Auditor 
General, who will forward these adits to the Parliament and 
the Registrar.  The Act enables the Registrar to request the 
Auditor to carry out an audit of a political party.   The 
Registrar will publish an annual report of the audited 
accounts of each political party.  False declarations shall 
be punishable by fine and/or prison sentence. 
 
------------------- 
Registration Issues 
------------------- 
 
¶10. The Act requires all parties to re-register with a 
newly-created Political Parties Registrar (the Registrar), 
which is part of the Electoral Commission of Kenya. 
Re-registration requires payment of a fee of approximately 
USD 80,000 (Ksh 600,000) -  a fee which many small parties 
complain is prohibitive.  The Registrar is entitled to issue 
provisional certificates of registration while it considers 
an application, but must make a decision within 180 days. 
The Registrar is permitted to de-register parties if, 
subsequent to registration, they run afoul of the Act's 
requirements that parties have a national outlook or fail to 
comply with financing rules.  The Act recognizes pre- and 
post-election coalitions and requires that parties to such 
agreements submit a copy to the Registrar.  The Act also 
recognizes that individual parties may act as "corporate 
members" of larger political groupings while maintaining the 
 
NAIROBI 00002696  003 OF 004 
 
 
ability to maintain their own structures.  The Act creates a 
Political Party Tribunal (the Tribunal), which is empowered 
to hear appeals of decisions of the Registrar.  The Tribunal 
will decide intra-party disputes, disputes among political 
parties, as well as disputes between coalition partners. 
Decisions of the Tribunal are final and not subject to 
appeal. 
 
----------------- 
Impact on Parties 
----------------- 
 
¶11. The Act imposes a number of requirements that will 
challenge the way parties do business.  Thus it poses 
significant challenges to even the biggest parties to ensure 
that they comply.  For example, few parties, with the 
exception of the Kenyan African National Union (which built 
up a vast grassroots network over its twenty years of 
one-party-rule), have a national network of members and 
offices, which requires a significant investment in time and 
money.  And, even KANU's network has weakened after it lost 
its grip on power in 2002.  In addition, party governance has 
often been weak, with de facto leaders deciding policy in 
place of de jure party decision-making bodies.  Under the 
Act, subversion of de jure party bodies can easily result in 
a suit at the Political Parties Tribunal, which promises to 
provide a streamlined conflict resolution mechanism. 
 
¶12.  Parties have been used to very lax controls on their 
finances and a complete lack of transparency to the public. 
Also, many party constitutions do not contain structures that 
comply with the Act, forcing these parties to convene party 
congresses to amend constitutions and also to hold leadership 
elections at the national level.  Also, parties need to hold 
elections for leadership of district branches, which has 
proven a contentious and difficult process.  Internal 
tensions within parties over the leadership requirements of 
the Act are rife as factions jockey for position at both the 
national and local levels. Of the more than 300 political 
parties currently registered, we expect no more than 30 to 
comply with the act. 
 
------------------- 
Struggles to Comply 
------------------- 
 
¶13.  The governing parties, the Orange Democratic Movement 
(ODM) and the Party of National Unity (PNU), distracted by 
political squabbles and the responsibility of governing, have 
yet to come into full compliance with the Act.  PNU, formed 
as a coalition of parties in the run-up to the 2007 
elections, is attempting to turn itself into a true party 
with individual members, a laborious and controversial 
process.  The process hit a roadblock when one of its largest 
member parties, NARC-Kenya, announced it would not join PNU 
as a party, but would register as an independent party. 
NARC-Kenya is the only major party that has complied with the 
Act.  Undeterred by the NARC-Kenya defection, PNU has been 
holding regional membership drives and plans to hold its 
local branch elections in early December with its national 
election to follow on December 19. 
 
¶14.  ODM, too, has struggled to comply with the Act. 
Internal dissent and dissatisfaction with Party leader Raila 
Odinga's handling of party matters and divisions over who 
should be named Deputy Party Leader has made internal 
elections a sensitive matter.  Furthermore, Odinga's 
insistence, as Prime Minister, that the government evict 
Kalenjin settlers from the Mau Forest watershed and the 
implement the Waki Report have caused rumors of a walkout by 
ODM's Rift Valley leadership, and has furthered delayed party 
elections.  Currently ODM expects to hold its district 
elections in early December with its national convention to 
follow.  More detailed analysis of the internal party 
dynamics affecting PNU, ODM, and other major parties will 
follow septel. 
 
------- 
COMMENT 
------- 
 
¶15.  The Acts sets a worthy goal of creating political 
parties that are durable and transparent institutions, 
capable of acting as agents of political mobilization on a 
 
NAIROBI 00002696  004 OF 004 
 
 
national level.  However, it is currently aspirational, and, 
to achieve this goal, Kenya's political class - still 
dominated by tribal politics and preferring opaque party 
governance - will need to undergo a cultural shift that will 
take years to accomplish.  More immediately, most parties 
will need to undertake significant structural changes to 
comply with the Act.  For the vast majority of parties, this 
process will prove too burdensome.  We expect no more than 20 
parties to remain active. 
 
¶16. Small parties complain that the Act favors 
well-established parties. They claim, rightly, that 
registration fees are prohibitive and the requirement that 
parties maintain a network of district offices is too 
expensive for their limited financial capability.  They also 
object to the public financing scheme, which rewards 
electoral success and which does not aim to level the playing 
field for smaller parties.  We will not mourn the passing of 
most currently-active political parties. However, we note 
that these requirements may prove insurmountable barriers to 
entry for new parties, which are the lifeblood of democracy. 
The role of the Political Registrar and Political Party 
Tribunal - which are new institutions and are unlikely to be 
affected by the expected reform of the current ECK -- will be 
key to make the system function effectively.  More 
immediately, the Act's provisions that strip wayward 
legislators of their seats is likely to play a significant 
role in strengthening party discipline in parliament (and 
local councils), and thus significantly strengthen the Grand 
Coalition's staying power.  End Comment. 
RANNEBERGER