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Legal analysis: Draft Campaign Financing Bill

(ARTICLE 19/IFEX) - 1 May 2012 - In April 2012, ARTICLE 19 analysed the Draft Campaign Financing Bill, 2011 (“the Draft Bill”) of Kenya, which is currently undergoing a stakeholder review process by the Constitutional Implementation Committee of Kenya. ARTICLE 19 welcomes the initiative to foster greater transparency and accountability in the financing of election and referendum campaigns. However, a number of shortcomings in the Draft Bill jeopardise these objectives, and a series of amendments are required before the Draft Bill complies with international standards on freedom of expression and information.

In the analysis, ARTICLE 19 emphasises that transparency in campaign financing is indispensible for embedding accountability and integral to the promotion of good governance and democracy. Only with full access to information can the media scrutinise the conduct of election candidates and inform public debate on the dynamics and distribution of political and economic power in Kenya. The engagement that transparency fosters between candidates for public office and the electorate also maximises enjoyment of the right to political participation.

The analysis finds that positive measures in the Draft Bill include the establishment of limits on political campaign expenditures, caps on the amount individuals can donate to candidates, and the imposition of a ban on anonymous donations. The establishment of a framework for the collection and reporting of data to a new oversight Committee is a significant step towards furthering a culture of accountability in the financing of political campaigns.

However, ARTICLE 19 also finds that various elements of the Draft Bill fall short of international standards on freedom of expression and access to information. The Draft Bill designates as confidential all campaign financing information submitted to the oversight Committee, with only limited disclosure exceptions for information that is the subject of a complaint or investigation. This runs counter to the principles of proactive and maximum disclosure that are central to the right of access to information. The selection criteria for the oversight Committee are also left ambiguous, and there are inadequate safeguards to ensure the accountability of this committee to the public.

ARTICLE 19 urges the Kenyan legislature to revise the Draft Bill and adopt it only after it is brought into compliance with international standards on freedom of expression and information. The need for greater transparency in all aspects of public life in Kenya further demonstrates the urgent need for a comprehensive access to information framework to be implemented in the country.

Recommendations:

- The criteria for selection and membership in the Campaign Finance Committee must be clearly enumerated in the Bill.
- Information submitted to the Campaign Financing Committee by candidates should not be kept confidential, but should be proactively disclosed and publicly available in accordance with international standards on freedom of information.
- Limits on election and nomination campaign expenditures should be subject to Parliamentary approval.
- The Kenyan legislature must adopt the Freedom of Information Bill, subject to the recommendations previously made by ARTICLE 19.

Read the full analysis

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