Types of Election Offences in Kenya
- Author: Gĩthĩnji
- Updated on:
Table of Contents
(1) A person who, during an election period—
- (a) directly or indirectly offers a bribe to influence a voter to—
- (i) vote or refrain from voting for a particular candidate or political party;
- (ii) attend or participate in or refrain from attending or participating in any political meeting, march, demonstration or other event of a political nature or in some other manner lending support to or for a political party or candidate;
- (b) in any manner unlawfully influences the result of an election;
- (c) directly or indirectly, in person or by any person on his behalf, in order to induce any other person to agree to be nominated as a candidate or to refrain from becoming a candidate or to withdraw if they have become candidates,
commits an offence.
(2) A person who, during an election period, accepts or agrees to accept a bribe that is offered in the circumstances described in subsection (1) commits an offence.
(3) A person who commits an offence under this section shall be liable, on conviction, to a fine not exceeding two million shillings or to imprisonment for a term not exceeding six years or to both.
10. Undue influence
(1) A person who, directly or indirectly in person or through another person on his behalf uses or threatens to use any force, violence including sexual violence, restraint, or material, physical or spiritual injury, harmful cultural practices, damage or loss, or any fraudulent device, trick or deception for the purpose of or on account of—
- (a) inducing or compelling a person to vote or not to vote for a particular candidate or political party at an election;
- (b) inducing or compelling a person to refrain from becoming a candidate or to withdraw if he has become a candidate; or
- (c) impeding or preventing a person from being nominated as a candidate or from being registered as a voter,
commits the offence of undue influence.
(2) A person who induces, influences or procures any other person to vote in an election knowing that the person is not entitled to vote in that election commits an offence.
(3) A person who directly or indirectly by duress or intimidation—
- (a) impedes, prevents or threatens to impede or prevent a voter from voting; or
- (b) in any manner influences the result of an election,
commits an offence.
(4) A person who directly or indirectly by duress, intimidation or otherwise compels or induces any voter who has already voted at an election—
- (a) to inform that person or any other person of the name of the candidate or political party for which the voter has voted; or
- (b) to display the ballot paper on which the voter has marked his vote,
commits an offence.
11. Use of force or violence during election period
A person who, directly or indirectly in person or by any other person on his behalf, inflicts or threatens to inflict injury, damage, harm or loss on or against a person—
- (a) so as to induce or compel that person to support a particular candidate or political party;
- (b) on account of such person having voted or refrained from voting; or
- (c) in order to induce or compel that person to vote in a particular way or refrain from voting,
commits an offence and is liable on conviction to a fine not exceeding two million shillings or to imprisonment for a term not exceeding six years or to both.
12. Use of national security organs
A candidate or any other person who uses a public officer, or the national security organs to induce or compel any person to support a particular candidate or political party commits an offence and is liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding six years or to both.
13. Offences relating to elections
A person who—
- (a) prints, publishes, distributes or posts up, or causes to be printed, published, distributed or posted up, any advertisement, handbill, placard or poster which refers to any election and which does not bear upon its face the names and addresses of the printer and publisher;
- (b) makes or publishes, before or during any election, for the purpose of promoting or procuring the election of any candidate, any false statement of withdrawal of any other candidate at such election;
- (c) forges, defaces or destroys any nomination paper, or delivers to a returning officer any nomination paper knowing it to be forged;
- (d) interferes with election material by removing destroying, concealing or mutilating or assists in the removal, destruction, concealment or mutilation of any such material save on the authority of the Commission or under the provisions of the Elections Act (No. 24 of 2011);
- (e) directly or indirectly prints, manufactures or supplies or procures the printing, manufacture or supply of any election material in connection with the election save on the authority of the Commission;
- (f) interferes with free political canvassing and campaigning by—
- (i) using language which is threatening, abusive or insulting or engages in any kind of action which may advocate hatred, incite violence or influence the voters on grounds of ethnicity, race, religion, gender or any other ground of discrimination;
- (ii) directly or indirectly, using the threat of force, violence, harassment or otherwise preventing the conduct of any political meeting, march, demonstration or other event of a political nature or any other person from attending or participating therein;
- (iii) creating a material disruption with the intention of preventing a political party from holding a public political meeting;
- (iv) impeding, preventing or threatening to impede or prevent the right of any representative of any political party from gaining access, in the manner and during the hours prescribed to voters in any particular area, whether public or private for the purposes of canvassing and campaigning and soliciting membership and support; or
- (v) impeding, preventing or threatening to impede or prevent a member of the Commission, a representative of the Commission or any other authorised person or organisation engaged in voter education from gaining access, in the refuses or fails to effect a direction, instruction or lawful order issued by or on behalf of the Commission;
- (g) refuses or fails to leave an election counting centre or any area designated by the Commission for electoral purposes when so ordered in accordance with the Elections Act;
- (h) enters or remains in an election centre or in any area designated by the Commission for electoral purposes in contravention of Elections Act;
- (i) obstructs or hinders any elections officer, candidate or agent in the execution of their lawful duties;
- (j) makes a false statement or furnishes false particulars in any statement which is required under Elections Act knowing the statement or particulars to be false or without reasonable grounds for believing the same to be true; or
- (k) publishes, repeats or disseminates in any manner whatsoever, information with the intention of—
- (i) disrupting or preventing the election;
- (ii) creating hostility or fear in order to influence the process or outcome of the election; or
- (iii) otherwise unlawfully influencing the process or outcome of the election, or aids, abets counsels or procures the commission of or attempts to commit any such offence; or
- (l) forges, defaces or destroys any campaign or promotional material of an opposing candidate or political party,
commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding five years or to both.
14. Use of public resources
(1) Except as authorised under this Act or any other written law, a candidate, referendum committee or other person shall not use public resources for the purpose of campaigning during an election or a referendum.
(2) Deleted by Act No. 34 of 2017, s. 12.
(3) For the purposes of this section, the Commission shall, in writing require any candidate, who is a member of Parliament, a county governor, a deputy county governor or a member of a county assembly, to state the facilities attached to the candidate or any equipment normally in the custody of the candidate by virtue of that office.
(4) A person who is requested to supply information required under subsection (3) shall submit the information within a period of fourteen days from the date of the notice.
(5) The provisions of subsection (3) shall apply with necessary modifications, to an employee of a statutory corporation or of a company in which the Government owns a controlling interest.
(6) A person who fails to comply with the provisions of this section commits an offence and is liable on conviction to a fine not exceeding two million shillings or imprisonment for a term not exceeding six years or to both.
(7) A member of the Commission, any person designated by the Commission or any authorised agency shall have the power to impound or to order the impounding of any state resources that are unlawfully used in an election campaign.
15. Participation in elections by public officers
(1) A public officer who—
- (a) engages in the activities of any political party or candidate or act as an agent of a political party or a candidate in an election;
- (b) publicly indicates support for or opposition against any party, side or candidate participating in an election;
- (c) engages in political campaigns or other political activity; or
- (d) uses public resources to initiate new development projects in any constituency or county for the purpose of supporting a candidate or political party in that constituency or county,
commits an offence and is liable on conviction, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or to both.
(2) A person who knowingly aids in contravention of subsection (1) commits an offence and is liable, on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment.
(3) A candidate who knowingly aids in contravention of subsection (1) shall not be eligible to contest in the election.
16. Unlawful expenditure
(1) A person who makes payment, contracts for payment or gives any other consideration of any kind for the purpose of promoting or procuring the election of a candidate at any election—
- (a) on account of the conveyance of voters to or from the poll, whether for the hiring of vehicles, vessels or animals of transport of any kind whatsoever, or for railway fares, or otherwise; or
- (b) to or with a voter on account of the use of any house, land, building, or premises for the exhibition of any address, bill or notice, or on account of the exhibition of any address bill or notice,
commits an offence.
(2) A person who, upon the filing of an election petition in respect of an electoral area and prior to the conclusion of a by-election in respect of that electoral area where a court determines that a by-election is to be held—
- (a) knowingly register voters in the electoral area in which the by-election is to be held;
- (b) knowingly cause the registration of voters in the electoral area in which the by–election is to be held; or
- (c) transfer voters in substantial numbers to the electoral area in which a by-election is to be held,
commits an offence.
(3) A person who knowingly receives payment under the circumstances provided for under subsection (1) commits an offence.
(4) A person who lets, lends or employs a vehicle, vessel, aircraft, or animal of transport knowing that it is intended to be used to convey voters to and from a poll commits an offence.
(5) A person who hires, borrows or uses a vehicle, vessel, aircraft, or animal of transport knowing that it is intended to be used to convey voters to and from a poll commits an offence.
(6) Nothing in subsection (4) or subsection (5) shall prevent an owner of a vehicle, vessel or animal of transport of any kind from letting, hiring or being employed or used by a voter or several voters at their joint cost for the purpose of conveying the voters to or from a poll.
(7) Notwithstanding anything in this section—
- (a) where it is the ordinary business of a voter as an advertising agent to exhibit for payment bills and advertisements, a payment to or contract with such voter if made in the ordinary course of business, shall not be deemed to be an offence within the meaning of this section; and
- (b) where voters are unable at an election to reach their polling stations from their place of residence without crossing the sea or a tributary thereof or a river, means may be provided for conveying the voters to their polling stations or to enable them to cross in order to reach their polling stations.
(8) The means of conveyance referred to in subsection (7)(b) shall be made available equally to all voters who wish to be conveyed to vote.