The electorate under siege; rethinking the place of political manifestos and their legal enforceability in Kenya

Politicians, though bound by the national values and principles of governance both before and upon ascension into office, have lived to misguide the electorate with regards to their public promises vis a vis their implementation.  The national values and principles of governance bind all state organs, state officers, public officers and all persons whenever any of them applies or interprets the constitution, enacts, applies or interprets any law or whenever anyone makes or implements public policy decisions.[1] The indenturing national values and principles of governance include inter alia, patriotism, the rule of law, democracy, participation of the people, good governance, integrity, transparency and accountability. It averts the logic of democracy and good governance if the sovereign power of the people is curtailed via false promises misguiding the public on their choice of leaders. Consequently, causing a continuous chain of unsatisfying leadership and poor governance.

It is unfortunate that the Kenyan electoral and governance jurisprudence has little to offer with regards to the legal enforceability of political manifestos.This paper hence examines the place of political manifestos in Kenya, with a temporal focus on the new constitutional regime in Kenya (Post-2010). Taking a look at the pivotal place of manifestos, it further supposes that there should be stablished legal mechanisms to enforce political manifestos in Kenya.

The place of political manifestos in Kenya

Article 91 of the Constitution[2] establishes the basic requirements for political parties in Kenya and further provides the principles upon which political parties shall be founded. Notably, political parties should adhere to national values of unity, equality and equity, as well as democratic principles of good governance. Furthermore, political parties are to be governed based on the national values and principles of governance as espoused under Article 10 of the Constitution.[3]

The Political Parties Act, 2011 was enacted to provide for the registration, regulation and funding of political parties, and other connected purposes.[4] Section 15(c) of the Political Parties Act entitles all the registered political parties the provision by the State, of fair opportunity to present the political party’s programs to the public by ensuring equitable access to the State-owned media.

 To effectuate the adherence to the legal provisions on Kenyan elections, there is established the state Office of the Registrar of Political Parties (ORPP) under the Political Parties Act.[5] The Office is  obligated to register, regulate, monitor, investigate and supervise political parties in their operations and ensure that they comply with the provisions of the Act.[6] As per the party policies established by the ORPP, there are requisite party records that are fundamental for party institutionalization, inclusive participation, education of party members and the public at large, accountability and transparency as well as responsible representation.[7] These documents include inter alia, the party constitution, party manifesto and other policy documents. This speaks to the legal place of party manifestos in the walk of democracy and the effectuation of the constitutional provisions underpinning the institution and practice of the sovereign powers of the people.

Furthermore, political parties’ registration is subject to the parties’ signing and acceptance to be bound by the political parties’ code of conduct.[8] The code of conduct is basically instituted to ensure regulation of the behavior of members and office holders of political parties, aspiring candidates, candidates and their supporters. This is to promote good governance and eradicate political malpractices. Besides respecting and upholding the democratic process as they compete for political power, political parties are bound to promote policy alternatives responding to the interests, concerns and needs of the citizens of Kenya as well as ensure that they implement their policies (e.g. manifesto). Further to that political parties are to garner genuine support and not to engage in influence peddling, bribery or any other form of corruption.[9] Similarly, political parties are to respect, uphold and promote leadership and integrity principles as prescribed by the Constitution of Kenya. Hence, they are to ensure transparency and accountability in all their regulations, structures, procedures and performance. In a nutshell, this speaks to the expected high levels of truthfulness, integrity and fidelity that the political class owe the sovereign electorate.[10] However, the political class has lived to prove otherwise.

Cognizant of the fact that  manifestos contain a set of policies and principles that the party stands, they undoubtedly heavily influence the decision making of the people at the point of casting their votes.[11] To this end, it is in order to opine that political manifestos heavily hinge the pragmatic effectuation of democracy and governance and are thus a determinant of the country’s democratic and governance trajectory.

Immortalizing the asseveration that political manifestos in Kenya fail to be well considered, this paper examines the post 2010 presidential manifestos by the ruling governments and the extent of their realization.

The Jubilee manifesto (2013 &2017)

In 2013, the historic elections were fiercely contested by two major coalitions i.e. the Jubilee coalition and the Coalition for Reforms and Democracy (CORD).[12] The Jubilee Coalition which eventually formed government, had a threefold manifesto i.e. It was divided into three main pillars; Unity, Economy and Openness.[13] On the first pillar of unity, the Jubilee Alliance pledged to ensure that all Internally Displaced Persons (IDPs), including those who were evicted from the Mau Forest and those affected by the Post-Election Violence (PEV) IDPs and squatters in the Coastal counties, were relocated and possibly returned to their homes.[14] Unto the second pillar, The Jubilee Alliance set a goal of 7–10% growth in the first two years of its rule, with the expectation that this would lead to the creation of 1 million new jobs for young people. It further promised the electorate that if elected, they would ensure the eradication of social ills such as corruption in the government.[15] Finally, on the third pillar of openness, the Jubilee Alliance pledged to inter alia clear up the mess and eradicate corruption to ensure that Kenyan businesses proven to have engaged in corrupt practices would be held accountable.[16]

Contrary to the heavenly assurances to the electorate, upon election, the then president and his deputy seemed to have reverted to the question of how to reward their political loyalists.[17] Four years in power, the Jubilee government was accused of failure to implement several promises and government projects assured to the electorate. The failures ranged from government officials being accused of massive corruption, high debt incurring spree, food insecurity, youth unemployment, etc.[18]

Similarly, in 2017, the Jubilee party embarked on the electorate with a more fashioned manifesto that was premised on the mantra, “Continuing Kenya’s transformation together.[19] Again, this was premised on three pillars (though a wee bit different from the 2013 ones) i.e. transforming lives, transforming the society and transforming the nation. The promise to transform lives was basically to ensure educational, Healthcare and housing transformation. Equally, the societal transformation was to major on matters of governance, cohesion, security and devolution as the initiative to transform the nation promised to transform the Economy, Agriculture, Foreign Relations and  Infrastructure.[20]

In a report by Mzalendo, a Kenyan Non-partisan Parliamentary monitoring organization,[21] the parliamentary watchdog accused the Jubilee government for its failure to implement the promises it made to the electorate.[22] The report flagged The  Jubilee Government  for failing in the implementation of its promises, including those to women and youth and those on devolution and governance.[23] The report provides that despite their tyranny of numbers, the governing party still failed to deliver the promise of good governance, inclusion of the people, devolution etc. This is coupled with the failure of the Big Four Agenda to meet the promise it made to Kenyans.[24] This which was a 4-point developmental promise anchored on food security and nutrition, universal healthcare, affordable housing and manufacturing. Till the 2022 electioneering period, the Jubilee administration has been on the spot for the failed promises it made to the electorate, not only in 2017 but ever since the 2013 electoral politics.[25]

The ‘hustler promise’

On the 30th of June 2022, President William Ruto led the Kenya Kwanza team in unveiling their 2022 Presidential Manifesto at the Kasarani National Stadium.[26] In the launch of the Kenya Kwanza manifesto dubbed ‘The Plan’, President Ruto promised immediate attention to the Kenyan economy.[27] Assuring the electorate that if elected, he will make a decisive break from the business-as-usual economic policies and carry out bold economic reforms in a coherent fashion, to accelerate job creation and leave no one behind in the empowerment process. At the epicenter of the manifesto was the ‘hustlers’[28], with the  economy-revamping strategy dubbed, ‘The Bottom Up Economic Model’.[29]

President Ruto promised, among other things, investing at least Sh250 billion in five years effective 2023 to boost Agriculture and food security, providing Sh50b annually to provide Micro, small & Medium Enterprises (MSMEs) with reliable access to credit. He also promised to build 250,000 new affordable houses every year through public-private partnership setting up a settlement fund to acquire land and resettle up to one million landless families, mandatory national health insurance (NHIF), the establishment of new level 6 hospitals in six new sites and the hiring of an initial 20,000 health care workers, constructing a 100,000-kilometer fiber optic connectivity network. bridging current teacher shortage gap within two financial years, doubling the amount of money allocated to the school feeding program.[30]

Borrowing from the United States’ 32nd  President Franklin D. Roosevelt’s ‘First 100 days concept’, [31] the then Deputy President, Dr. William Samoei Ruto assured the electorate of a number of things to be in place within his first 100 days in office as president, if and when elected. Top on the list was the promise to lower the cost of living within his first 100 days in office.[32] Refuting the dilapidated economy’s explanations on the Ukraine- Russia war, the president stated that the way to economic reformation was premised on agricultural prowess, which he was after.[33] He further assured the electorate that the two third gender rule will be effectuated with his cabinet comprising of 50-50 gender share.[34] The President, too promised to operationalize the Judiciary fund, reform justice institutions, appoint the six judges whom the Former president had declined to appoint, etc.[35]

Not unminding the fact that there exists a number of things such as judge appointments that have been executed by the government, as the norm stands, the most alluring promises to the electorate have since not been met. This is with due regard to the set temporal parameters for their execution. This is by dint of the reality contrary to the promises as regards to the high cost of living, the constitution of the Cabinet without considering the 50-50 gender promise by the president among others.

Similarly, the case is equally the same in the county governments and with the promises made by other politicians during the campaign trails. It then begs the question of the practicability and realness of political manifestos for their implementation. It thus invites the attention of the law in this. It has been erroneously argued and held in a number of judicial decisions that political manifestos do not arise any legitimate expectations from the electorate. However, in the Najma v Government of NCT of Delhi case,[36] the High Court of Delhi at New Delhi disabused the faulty position that political manifestos cannot arise legitimate expectations from the electorate. On the contentious question of whether the doctrine of legitimate expectation could be invoked without a clear governmental policy, the court affirmed that there indeed could arise legitimate expectations from the people with regards to averments of public officers.

The doctrine of legitimate expectation and political manifestos

The Constitution of Kenya as well as The Fair Administrative Action Act(FAAA)[37] fails to give an explicit definition of the doctrine of legitimate expectation. However, the doctrine is mentioned under Section 7(2)(m) of the FAAA as a ground for judicial i.e. a court may review administrative action or decision if the administrative action or decision violates the legitimate expectations of the person to whom it relates.[38]

In his book, Administrative Law, Professor Migai Aketch[39] equates the doctrine of legitimate expectation to the principle of public trust; a principle which, inter alia, seeks to demonstrate respect for the people, and promote public confidence in the governing authorities. As a norm of judicial control, the doctrine of legitimate expectation is established to ensure certainty and predictability in executive actions. It thus seeks to give to ensure enforceability of promises and/or representations given by or on behalf of an authority to an individual. This is essentially to moat the vulnerability of such bargains from the promisees.[40]

A claim of legitimate expectation may arise from an express promise by an authority or by dint of the existence of a certain norm or practice unto which one can reasonably expect it to continue.[41] It hence suffices to opine that the legitimate expectation doctrine is meant to advance certainty and predictability in governance and hence the promotion of social and political order. Wade and Forsyth in their work, Administrative Law, 10th edition,[42] premise the essence of the doctrine of legitimate expectation on the principle of fairness and the certainty of promises. As opined by the learned duo and buttressed by Peter Kaluma in his book, Judicial Review: Law Procedure and Practice, [43] the concept of legitimate expectation has developed as a control mechanism against maladministration  and the abuse of power.

In the case of South African Veterinary Council v. Szymanski,[44]the court held that the law does not protect every expectation but only those which are ‘legitimate’. It thus begs the question of when exactly are expectations legitimate? The court proceeded to establish that there exist requirements for legitimacy of the expectation to be established. This include the fact that, the representation underlying the expectation must be clear and unambiguous, the expectation must be reasonable, the representation must have been induced by the decision- maker and that the representation must be competent and lawful for the decision-maker to make without which the reliance cannot be legitimate.[45] This has similarly been echoed by the Supreme Court of Kenya  in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others.[46]

Wade and Forsyth(supra) while basing reliance on the R. v. DPP ex p. Kebilene decision,[47] aver that for an expectation to be legitimate, it must first be premised on a promise or practice by a public authority, that is said to be bound to fulfil the expectation. Furthermore, it is noteworthy that there are no strict rules as to the form of representation for it to arise a legitimate expectation. This is because a representation may arise from an express promise, words, documents, conduct or from a combination of the aforementioned.[48] Notably, a representation may arise based on a variety of sources such as statutes, subsidiary legislation, statements, reports, agreements, conduct etc. Of  key to note  is the fact that no legitimate expectation can override the provisions of the existing laws of the land.[49]

However, despite the existence of a legitimate expectation in a prior expression by an authority, there may exist satisfying reasons as to why the authority intends to work so as to defeat the expectation. According to Lord Diplock in the GCHQ case,[50] legitimate expectations should be upheld until the administrator has communicated to the person with the expectation some rational grounds for withdrawing the benefit/advantage and the person has been given opportunity to comment on the proposed withdrawal. The dismemberment of the expectation hence requires that the expectations be weighed against the general public interest and public good.[51]

In the realm of political manifestos, the promises are made by individuals who aspire to join public offices. By dint of the majoritarian nature of democracy, it is presumed that whoever wins and gets into office is the choice of the people (all the people). This is despite the fact that there may exist a sizable number of the electorate who did not vote for the person in office. This hence shifts the mindset of the electorate (those who voted for the winner and those who did not) to the promises made by the authority in question that consequently informed their ballot decisions. This arises the expectation from the people that the ‘leader-elect’ will fulfill to the people the promises he made during the campaigns.

Notably, notwithstanding the fact that every person (politicians included) is bound by the national values and principles of governance, the estoppel doctrine  bars them from asserting a claim or a right that contradicts what they said or did before or that which has been legally established as true.[52] Professor PLO Lumumba in his book ‘Judicial Review in Kenya’[53]  asserts that the principle of estoppel is meant to ensure a certain degree of certainty and consistency (between the governor and the governed). This is because many of the daily activities of the people are premised on the promises and or representations of facts made by others. Therefore, those who rely on those promises and representations must be protected from the harmful consequences of relying on the same.

Conclusion

In conclusion, by dint of the fact that political manifestos are a key determinant of the electorate’s ballot choices when exercising their sovereign power, the electorate must be guarded from the vice of non-implementation of the promises by the political class. It is therefore noteworthy that not only do political manifestos influence the voters’ minds during elections, but also heavily inform the leadership and governance trajectory of the state. As a pivotal hinge on the leadership, governance, democratic and socio-political path of the country, there’s a need to rethink the place of political manifestos and their legal enforceability in Kenya. Conclusively, Kenya’s political and electoral jurisprudence should develop and not just focus combating electoral malpractices but also policy implementation as domiciled in the well-articulated political manifestos. Whether or not to open a jurisprudential Pandora’s box, it is a discourse worthy of scholarly engagement and consequently a strategic administrative move toward its effectuation.

Ndubi Marvis is a student of law at The Moi University School of Law, Annex Campus. Passionate about the law and with much interest in inter alia Human Rights, Constitutional law, administrative law and governance. He can be reached through ndubimarvis@gmail.com


[1] Constitution of Kenya 2011, Art 10

[2] Constitution of Kenya 2010, Art 91

[3] Ibid, Art 10

[4] Political Parties Act, No 11 of 2011

[5] Ibid

[6]Ibid, Section 34

[7] Office Of The Registrar of Political Parties, Party Policies, accessed at >>>https://www.orpp.or.ke/index.php/resources/test/12-general-information/57-party-policies

[8] Political Parties Act, First Schedule on the Code of Conduct for Political Parties.

[9] Ibid

[10] Kangu, J. Mutakha. “‘We the people ‘as the sovereign in the theory and practice of governance.” Moi University Law Journal 1, no. 2 (2007): 197-215.

[11] Eder, Nikolaus, Marcelo Jenny, and Wolfgang C. Müller. “Manifesto functions: How party candidates view and use their party’s central policy document.” Electoral Studies 45 (2017):75-87 accessed at >>> https://reader.elsevier.com/reader/sd/pii/S026137941630035X?token=C02FFF6E3F76EF9ECB506A36A1780D4E5E8C4FFFE992B2F94E10029F49D5C7D2C503B9A2A328DFCF50EC084C21DB8429&originRegion=eu-west-1&originCreation=20221217130504

[12] Raila, Kalonzo seal deal as Mudavadi joins Uhuru, Ruto – The Standard (standardmedia.co.ke),The Standard. Retrieved 17, December 2022

[13] Manifesto, Jubilee. “Transforming Kenya: Securing Kenya’s Prosperity (2013-2017).” Agenda for Kenya 2017 (2013), accessed at>>> https://s3-eu-west-1.amazonaws.com/s3.sourceafrica.net/documents/119133/Jubilee-Manifesto-2013.pdf

[14] Ibid (29)

[15] Ibid

[16] Ibid

[17] Jubilee and its Failed Manifesto, by Osano Calvine, accessed at>>> https://www.standardmedia.co.ke/ureport/story/2001231568/the-jubilee-government-has-failed-to-honour-its-manifesto#google_vignette

[18] Ibid; see also, https://youtu.be/GStVLMQrJog ; Jubilee on the spot over the unfulfilled promises,  by Samuel Born Maina, accessed at >> Jubilee on the spot over the unfulfilled promises | Nation; see also https://youtu.be/Z_p1eFmXdg0

[19] Jubilee-Party-Manifesto-2017.pdf, accessed at>>> https://s3-eu-west-1.amazonaws.com/s3.sourceafrica.net/documents/120033/Jubilee-Party-Manifesto-2017.pdf 

[20] Analysis of 2017 Political Manifestos, by Transparency International Kenya, accessed at >>> https://tikenya.org/wp-content/uploads/2017/09/Analysis-of-Political-Manifestos-2017.pdf

[21] Mzalendo is a Kenyan non-partisan Parliamentary monitoring organization whose mission is to “promote the realization of open, inclusive, and accountable Parliaments across Kenya and Africa” see, https://info.mzalendo.com/

[22] From Promise to Implementation; A Review of The 2017 Political Manifesto and The Impact on The Legislative Agenda, accessed at>>> https://mzalendo.com/media/resources/From_Promise_to_Implementation_-__A_Review_of_the_2017_Political_Party_Manifestos.pdf

[23] Watchdog accuses Jubilee of failure to implement manifesto, by Julius Otieno, accessed at https://www.the-star.co.ke/news/2020-11-19-watchdog-accuses-jubilee-of-failure-to-implement–manifesto/

[24] Big-Four-Agenda-Report-2018_19.pdf, accessed at https://monitoring.planning.go.ke/wp-content/uploads/2020/10/Big-Four-Agenda-Report-2018_19.pdf

[25] Unfulfilled Promises Haunt Uhuru as Term nears end, by Moses Nyagih. Accessed at https://www.standardmedia.co.ke/counties/article/2001355093/unfulfilled-pledges-haunt-uhuru-as-term-nears-end

[26] Full DP William Ruto’s Manifesto Launched on June 30, By Geoffrey Lutta on 1 July 2022 – 9:36 am, accessed at>>> https://www.kenyans.co.ke/news/76792-full-dp-william-rutos-manifesto-launched-june-30 ;see also, https://www.capitalfm.co.ke/news/2022/06/ruto-to-unveil-kenya-kwanza-manifesto-anchored-on-economic-renewal/ , https://www.standardmedia.co.ke/article/2001449245/the-plan-william-ruto-unveils-kenya-kwanza-manifesto

[27]KenyaKwanzaUDAManifesto2022.pdf,accessedat>>>https://africacheck.org/sites/default/files/media/documents/202208/Kenya%20Kwanza%20UDA%20Manifesto%202022.pdf ;see also,  DP Ruto Launches Kenya Kwanza Manifesto, accessed at>>> https://youtu.be/a116HB_jsyw

[28] Hustler nation: The definition of homegrown political ideology, by Isaac Mwaura.Accessed at >>> https://www.the-star.co.ke/siasa/2021-01-29-hustler-nation-the-definition-of-homegrown-political-ideology/

[29] Bottom Up Cause, Trickle Down Doesn’t , accessed at>>> https://www.bottomupeconomy.org/regulatory-aversion/

[30] The things William Ruto has promised Kenyans, by Patrick Vidija, accessed at>>>https://www.standardmedia.co.ke/article/2001449245/the-plan-william-ruto-unveils-kenya-kwanza-manifesto

[31] The First 100 Days: Franklin Roosevelt Pioneered the 100-Day Concept, by Kenneth T Walsh, accessed at>>> https://www.usnews.com/news/history/articles/2009/02/12/the-first-100-days-franklin-roosevelt-pioneered-the-100-day-concept

[32] Kenya’s Ruto pledges to bring down cost of living ‘in 100 days’, by Otieno Otieno accessed at >>> https://www.theeastafrican.co.ke/tea/news/east-africa/kenya-s-ruto-pledges-to-bring-down-cost-of-living-in-100-days–3866496

[33] Ibid

[34] The raw deal for women in Kenya Kwanza and glaring contradictions, by Daisy Maritim, accessed at >>>https://www.standardmedia.co.ke/sports/index.php/daisy-maritim/article/2001447723/the-raw-deal-for-women-in-kenya-kwanza-and-glaring-contradictions

[35] Ruto’s First 100 Days in Office: Promises Kept and Broken, by Tracy Anne Bonareri, accessed at >>>https://pigafirimbi.africauncensored.online/rutos-first-100-days-in-office-promises-kept-and-broken/

[36] Najma vs Govt. Of Nct of Delhi on 22 July, 2021

[37] Fair Administrative Action Act, Act No.4 of 2015

[38] Ibid, Section 7(2)(m)

[39] Migai AJM, Administrative Law (Strathmore University Press 2016)

[40] Kaluma, (2012) Judicial Review: Law, Procedure and Practice Nairobi: Law Africa, page 167

[41] Ibid

[42] Forsyth CF and Wade W, Administrative Law (Oxford University Press 2014), page 447

[43] Kaluma P, Judicial Review: Law Procedure and Practice (LawAfrica 2012) page 167

[44] South African Veterinary Council v. Szymanski 2003(4) S.A. 42 (SCA), paragraph 28

[45] Ibid

[46] Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, paragraph 268

[47] R. v. DPP ex p. Kebilene [1999] 3 WLR 972(HL)

[48] Supra note 44, page 170

[49] Republic v Nairobi City County & Another ex parte Wainaina Kigathi Mungai, High Court Judicial Review Misc. Case No. 356 of 2013; [2014] eKLR, paragraph 33

[50] Council of Civil Service Unions V Minister for the Civil Service [1984] UKHL

[51] Kaluma P, Judicial Review: Law Procedure and Practice (LawAfrica 2012) page 172

[52] Black’s Law Dictionary, 9th Edition,

[53] O. LPL, Judicial Review in Kenya (AfricanLaw Publ 2006), page 84

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