ODM Primaries – when Rules seem to fail

Do ODM nomination rules themselves pose a problem or is it their implementation by the ODM National Election Board and the regional bodies? When we scrutinized the party’s Election and Nomination Rules of the Orange Democratic Movement of Kenya (ODM) we found: ODM is not fully following its own nomination rules.

 

We also see a number of points that need clarification. We see contradictory and incomplete definitions of rules. We have uploaded the rules for your own reference (odm-election-nomination-rules-bw)and we have also written an FAQ to guide our fellow journalists who are reporting on the primaries.

This is not a complete mentioning of all the provisions of the rules but a list of the most urgent questions.

 

The main provision for the primaries is rule No. 18, which we at RoGGKenya suggest to read through. But as you will realize, there are other rules, which are related to the process and should be pondered.

1. Who is eligible to vote in the ODM primaries?

According to 18.1 of the rules, every registered member of ODM is entitled to vote “by way of universal suffrage”.

 

2. How does a voter prove eligibility?

Firstly, 23.1 of the rules requires ODM’s National Election Board to ensure that party register “of all party members” be found in all wards, constituencies and counties as the case may be.

Secondly, the eligible voter who shall be identified “by availing the following documents: (i) National Identity card, and (ii) Voter’s card or Passport” (rule 23.2)

In addition, the term “voter” is interpreted in ODM rule No. 2 as a voter registered by the IEBC.

Comment:

There have been concerns about claims that party members can only vote in the primaries if they are registered as voters for the general elections. According to rule 18.1 this is not true, but rule Numbers 2 and 23.2 could be used to argue.
Also, ODM has at least in some counties demanded an additional rule by saying that; only party members who had registered via a text message costing 10 Shillings until a given date are eligible to vote in the primaries. Many did not know and as such many had not registered as voters online by the time of the primaries. What is happening to these voters?

 

3. How is an applicant for nomination admitted?

The Nomination Rules state requirements for aspirants of each position in Rule 16.
Rule 15 requires the party to set up vetting committees, which can deny the applicant registration as an aspirant. Reasons for not granting the application can be inactivity within the party, disloyalty or an inability to propagate and articulate party policies and ideology. There is no provision about the process of handling the application.

 Comment:

In the primaries already conducted in some counties, aspirants realized only on the day of the primaries, that their names were missing on the ballot papers. Even though the aspirants had registered and paid before January, it seems that the party had since then not issued a written prove of their registration or rejection of registration. There is no such paper as an aspirant certificate mentioned, nor a procedure to appeal against ignorance or denial of an application for being an aspirant in the primaries.

We did not find a provision on how and when the ODM itself should publish the aspirant list before submitting it to the IEBC.

 

4. When are the primaries taking place?

According to the ODM rules, they should take place at least six months before the election date in the counties in “Zone A” (see Schedule to the Rules and Rule 18.1 A), at least three months before in “Zone B” which is the zone of ODM strongholds.

Comment:

The rule is contradicting the IEBC timeline and has not been fully followed.

 

5. Where are they taking place, and how and when are the polling stations published?

According to 18.5 of the rules, the number of polling stations should be determined by ODM’s National Election Board and published 21 days ahead of the beginning of the primaries. BUT AS OF APRIL 12th THE PUBLICATION HAD INFACT NOT YET BEEN DONE. There was a press release on April 12 that the list should be posted on the party website, http://odm.co.ke, but we could not find it.

Comment:

No wonder there was confusion…

 

6. How and when should the aspirants’ lists be published?

The IEBC has required all parties to submit their lists by April 5. The commission was to gazette the list on April 12, the day before the primaries started according to the IEBC timeline. We found the aspirants list on IEBC website around April 14 or 16. As we write this (April 18), the aspirants’ list of MCAs for Jubilee is still missing online. The governors aspirant list of ODM on the IEBC website is not showing the correct names. It contains the aspirants for woman representative.

Comment:

It is an open question how the voters and the aspirants can scrutinize the list if it is officially gazetted on the eve of the start of the primaries. Not to mention the additional shortcomings and delays.

 

7. Who is in charge of counting and tallying the votes and announcing the results?

Presiding Officers at each polling stations are in charge of organizing the primaries, counting the votes and forwarding the results to the returning officers at the constituency level and then to the county level. The returning officers at the constituency level announce the results for MCAs, Woman Reps, and MPS. The returning officers at the county level announce the results for Governor and Senator. 18.6 of the Rules states that the  National Election Board at the national level declares the final results.

 

8. How are the officers and clerks recruited?

The National Election Board (NEB) has to recruit the officers. There is no provision in the rules on the transparency and openness of this process. For some of its tasks, the NEB needs the consent of the National Executive Committee of the ODM.

Comment:

The main controversy within ODM has been if the presiding officers would be impartial or biased and if they would try to rig the election results.

 

9. How is rigging of the elections prevented?

The ODM rules do not contain any specific rules on how rigging would be prevented.

 

10. What can aspirants do if they think the process is inaccurate?

MCA aspirants can, for a fee of ksh 30,000 and only within 48 hours of the announcement of results, file an appeal to the County Appeals Tribunal. This tribunal is to be appointed by the National Election Board and approved by the National Executive Committee (NEC) at least 30 days before the primaries begin. It may decide within 48 hours after the appeal has been made. For details see rule 19.1.

Aspirants for the National Assembly, the Senate, as Woman Aspirant, Governor or President may appeal, for a fee of kshs 70,000 and within 48 hours only, appeal to the ODM National Appeals Tribunal and their decision “shall be final”. This tribunal is to be appointed by the NEC but there is no provision on when the appointment shall be done. For details see rule 19.2.

Members of both tribunals should be party members but not aspirants or party officials themselves.

Comment:

Since the County Tribunals are appointed by the National Election Board there is no other, independent body for conflict resolution on this level. The rules do not state if a decision by the county tribunal can be challenged by appealing to the national tribunal. But the provision that its decision can be final is missing in the case of the County Election Tribunal.

 

11. What other entities within ODM are overseeing the primaries?

There is to be a Constituency Election Panel (rule 4.3) and a County Election Committee (rule 4.1). Both are appointed by the National Elections Board to “coordinate elections on behalf of the NEB”

Just by reading the ODM rules, we cannot give a complete list of committees or bodies because there are inconsistencies: “County Appeals Tribunal” (defined in 19.2 of the rules) versus “County Elections Tribunal” (mentioned in 18.8.III, but not defined) and “County Election Committee (defined in 4.2 of the rules) versus “County Elections Board” (mentioned in 18.8 ii, but not defined)

 

12. For an aspirant fighting possible unfairness – is this the end of the line?

No. there is a conflict resolution procedure outside of the party for which IEBC has announced a period between April 20 and May 19, 2017 .

 

13. Is the IEBC overseeing the primaries?

No. The Independent Electoral and Boundaries Commission (IEBC) has repeatedly stated that it will solely react to specific complaints.