Regulating political parties (Cont’d)

Last week we began a discussion on the need for regulation of political parties and some oversight over party financing. This week we draw references to two instances of proposed legislation, in the case of the Organisation of American States (OAS), and constitutional provisions in the East African state of Kenya, to illustrate how this is possible.{{more}}

The OAS has just put forward a draft model legislation for consideration by its member states covering governance of political parties and instituting a framework for regulating party financing. In order to accomplish this, the Draft proposes the establishment of what it describes as a Political Parties Commission, the expenses of which “shall be paid for out of a fund approved by Parliament” (Part 2, Sec 3 (3). The functions and powers of the proposed Commission include-registering political parties and monitoring the conduct of these parties and their candidates (electoral); investigating complaints made in accordance with stipulated grounds; receiving reports required by the Commission; allocating monies from a fund to be called the Political Parties Fund, and managing this Fund.

According to the model legislation, the Commission ought not to be any toothless bulldog. Rather it will be armed with powers to require a political party or candidate to “produce, for inspection by the Commission…documents or other records relating to the income and expenditure of the political party or candidate as the Commission may reasonably require….” (Sec 4 .2 (a)

Two further provisions concerning the Commission need to be observed. First, is the independence of the Commission. Sec.4 (3) spells out that “In the exercise and discharge of its functions, the Commission shall not be subject to the direction and control of any other person or authority”. This would however depend on how the Commission itself is constituted. The draft legislation leaves this very much up to the states themselves to decide, only proposing that the members of this Commission shall be appointed by the Head of State/Minister.

The second point of note relates to the provision to ensure that one cannot flout the authority of the Commission with impunity. Thus failure to comply with the request of the Commission to submit records is regarded as an offence punishable on conviction by a fine. Further Sec.4 (6) states specifically that any person found guilty of obstructing the Commission’s work can be fined and confined.

These are very serious provisions, which, if implemented in one form or another, can for the first time bring political parties under legal scrutiny. We have long operated in the context where such an important political instrument is outside the realm of regulation. There is not even a definition of a political party. One man can simply announce that he has formed a political party, no requirement for membership, governance and the like. Funding for the party can come entirely from external sources and the party can even be dedicated to the spread of pernicious ideas and philosophies, no problem under our very lax state of operation. The OAS legislation attempts to address this looseness.

It therefore specifies that there must be application for registration signed by a designated number of voters in which the party must provide certain information such as the particulars of leader, headquarters, symbol, etc. There is provision for refusal of the application if violations of the requirements are found with a recourse to appeal. Political parties registered can also lose their registration for specific violations.

A similar consideration guided Kenya’s recent approach to constitutional reform. Its new Constitution, promulgated last month, makes provisions for the regulation of political parties. There is a specific section (7.91) on “Basic requirements of political parties”, not leaving any free-for-all situation. This spells out that every political party must, among other considerations: (a) have a national character as prescribed by an Act of Parliament (no room for one-man or “rump” parties); (b) have a democratically elected governing body; (c) promote and uphold national unity (a call for secession by any party would therefore endanger its legal status); (h) subscribe to and observe the code of conduct for political parties. In addition this section obliges parties to respect the rights of minorities and marginalised groups as well as to ensure gender equality and equity.

The second part of this same section is also most interesting. I quote it in its entirety.

“A political party shall not- (a) be founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy or hatred or any such basis; (b)engage in or encourage violence by, or intimidation of its members, supporters, opponents or any other person; (c)establish or maintain a paramilitary force militia or similar organisation; (d) engage in bribery or other forms of corruption; or (e)except as is provided under this Chapter, or by an Act of Parliament, accept or use public resources to promote its interests or its candidates in elections.

Constitutional provisions like these help to safeguard the practice of democracy. They are aimed at fostering national unity and above all to prevent such persistent electoral plagues as violence and intimidation, corrupt practices such as bribery to secure electoral advantages, and as expressly stated to prevent the abuse of state resources, including state-owned media, to promote the interests of any particular party. These are some of the issues that we ought to be examining to enrich our own political processes.

Party Financing, next.

Renwick Rose is a community activist and social commentator.