The Political Parties Disputes Tribunal: Where Kenya’s Democracy Is Won Before a Single Vote Is Cast
By Mokua Manyara, Senior Partner, MNW & Advocates LLP
There is a Swahili proverb that every aspirant should write above their desk as the country turns toward 2027: fimbo ya mbali haiui nyoka. The stick that is far away does not kill the snake. In the law of political disputes, the proverb is jurisdiction itself. The aspirant who discovers the right forum after the nomination certificate has been issued, after the gazette has spoken, after the electoral calendar has marched on, holds a stick that can no longer reach the snake. By the time most Kenyans think about electoral justice, the contest that mattered is already over.
That contest happens before the Political Parties Disputes Tribunal.
Election petitions draw the cameras. They are the grand opera of our political law, argued before robed benches and dissected on evening news. But for every petition filed after a general election, there are hundreds of disputes decided in the months before it: the aspirant struck off a nomination list at midnight, the member expelled by an organ that never gave him a hearing, the secretary general removed by a national executive council whose own authority is contested, the small party squeezed inside a coalition that controls the purse. These are the disputes in which political careers are made and unmade and they belong, in the first instance, to a tribunal that most Kenyans could not name. Hii ndiyo siasa ya ndani; this is the politics within the politics, and it has its own court.
A Tribunal Born of Necessity
The Political Parties Act, No. 11 of 2011 established the Tribunal under section 39 as the answer to a problem the 2010 Constitution had named but not solved. Article 38 guarantees every citizen the right to form, participate in and campaign for a political party. Article 91 then conditions the existence of every party on a democratic internal architecture: a governing constitution, democratically elected organs and respect for the right of all persons to participate. Between the citizen’s right and the party’s obligation lies a vast territory of potential grievance, and Parliament placed a referee in that territory.
The Tribunal’s mandate under section 40 of the Act covers disputes between members of a political party, disputes between a member and the party, disputes between political parties themselves, disputes between an independent candidate and a party, disputes between coalition partners, appeals from decisions of the Registrar of Political Parties and disputes arising out of party nominations. Section 41 then imposes a discipline that ordinary courts can only envy: every dispute must be determined within three months, with appeals lying to the High Court on points of law and onward, where the Constitution permits, to the Court of Appeal and the Supreme Court.
Two features of this architecture deserve the attention of anyone who may one day stand before it.
The first is the doorkeeper rule. Following the Political Parties (Amendment) Act, No. 2 of 2022, the Tribunal may not hear most categories of dispute unless the claimant adduces evidence of an attempt to subject the dispute to the party’s internal dispute resolution mechanism. The amendment softened what was previously a requirement of full exhaustion, and the softening was deliberate. Internal mechanisms had become instruments of delay in the hands of party incumbents: an organ that never sat could never be exhausted and the complaining member aged at a door that would never open. The law now asks for a genuine knock, not an eternal wait. But it does ask for the knock. The aspirant who leaps straight to the Tribunal without ever invoking the party’s own machinery will ordinarily be sent back to begin where the statute begins.
The second is the watershed of the nomination certificate. The Tribunal governs the internal contest by which a party chooses its candidate. Once the certificate issues and the candidate is presented for registration, the dispute crosses into the mandate of the Independent Electoral and Boundaries Commission under section 74 of the Elections Act. The High Court drew this boundary with clarity in Republic v Independent Electoral and Boundaries Commission Ex Parte Wavinya Ndeti [2017] eKLR, where Odunga J explained that the Tribunal’s province is the dispute arising from the party’s own nomination exercise, while appeals from the Tribunal lie to the High Court and never to the Commission. The two institutions are neighbours, not rivals, and the fence between them is the certificate. Litigants who choose the wrong side of that fence do not merely lose time; in an election season, losing time is losing everything.
The New Creature: Coalition Political Parties
The 2022 amendments introduced into our law a creature that has since reorganised the entire political landscape: the coalition political party. The definition of a political party now expressly includes it, and with definition came justiciability. In the consolidated petitions in Katiba Institute & Others v Attorney General & Others, Petitions E043, E057 and E109 of 2022 [2022] eKLR, a three judge bench of the High Court upheld the new architecture and confirmed that a dispute between a political party and a coalition political party is a dispute between political parties within section 40(1)(c) of the Act, triable before the Tribunal. The same judgment pruned the Registrar’s powers, severing section 34(f) of the Act on the ground that the regulation of party nominations belongs constitutionally to the Commission and not to the Registrar.
What the judgment settled, practice has since complicated. When a constituent party seeks to leave a coalition political party, is the dispute contractual, governed by the coalition agreement, or is it a membership dispute, governed by the coalition party’s constitution? The honest answer is that it is often both at once, and the Act anticipates the layering: section 40(3) now requires every coalition agreement to contain its own internal dispute resolution mechanism, which becomes the first port of call before the Tribunal’s jurisdiction crystallises. The disputes over the disbursement of political party funds among the Registrar, the coalition party and its constituent members remain the least charted waters in this field. Those waters will not stay calm through 2027.
The Season of Removal
Nothing has illustrated the Tribunal’s gravity in the current cycle like the dispute over the removal of the Secretary General of the Orange Democratic Movement. When the party’s National Executive Council resolved to remove Hon. Edwin Sifuna from office, the battle that followed travelled directly to the Tribunal, which issued conservatory orders restraining implementation of the removal and barring the Registrar from gazetting it pending determination, before delivering its ruling at the end of March this year. The party argued that internal mechanisms had not been exhausted; the Secretary General argued that the process which removed him was itself the violation.
Whatever one’s politics, the dispute distilled three questions that every party official in Kenya should now ponder. When does the decision of an internal organ become final enough to be challenged? Can the Tribunal restrain the Registrar, an independent statutory officer, from gazetting a contested change? And does an official removed from office come to the Tribunal as an official or merely as a member? The deeper lesson is simpler and older. The same grain of rice can be cooked many ways. The same party constitution, read by an organ in a hurry and read by a tribunal at leisure, can yield very different meals, and the official who assumes the organ’s reading is the last word has not been paying attention.
What Remains Unsettled
A mature legal commentary owes its readers candour about what the law has not yet decided, for it is on the unsettled questions that tomorrow’s disputes will turn. May a person whose very membership the party denies invoke the Tribunal at all, and who bears the burden when the party register, maintained by the very organ accused of wrongdoing, says one thing and the member’s history says another? Can the Tribunal hear a dispute before it fully crystallises, where nomination rules published today will work their exclusion only at the nomination itself, by which time no remedy can help? May a tribunal established by statute grant constitutional remedies, sitting as it does within the subordinate courts under Article 169(1)(d) of the Constitution and bound as it is to apply the Bill of Rights, or do those remedies remain the preserve of the High Court? And where Article 91 commands internal democracy while Article 36 protects the freedom of association, can the Tribunal compel a party to hold the internal elections its own constitution promises, without crossing from supervising the game into playing it?
These questions are not academic. Each of them is a live wire running beneath the ground on which the 2027 nomination season will be fought, and the parties, aspirants and counsel who have mapped the wires before the digging starts will hold a decisive advantage over those who discover them by electrocution.
Counsel for the Road to 2027
For the aspirant, the lesson is procedural vigilance: know your party’s internal dispute resolution mechanism today, not on the day you need it; document every attempt to invoke it; and understand that the nomination certificate is a border post after which a different sovereign governs your dispute. For the party official, the lesson is process: an organ that disciplines, expels or removes without notice, hearing and proper constitution is writing the first ground of the appeal against itself. For the general counsel and the coalition negotiator, the lesson is drafting: the dispute resolution clause in a coalition agreement is no longer boilerplate; it is the constitution of the wars to come and section 40(3) has made it mandatory. And for all of them, the lesson is time. The Tribunal decides within three months because the calendar shows no mercy, and neither should your diary.
The Political Parties Disputes Tribunal is where Kenyan democracy does its quiet, decisive work, in the months when the cameras are elsewhere. Prevention remains better than cure, and in this field prevention is called preparation.
MNW & Advocates LLP advises political parties, coalition partners, aspirants, party officials and independent candidates on the full spectrum of political parties disputes, from internal dispute resolution and disciplinary processes to proceedings before the Political Parties Disputes Tribunal and appeals to the superior courts. A world of options, and us.
This article is provided for general information only and does not constitute legal advice. For advice on any matter touching on political parties law, contact MNW & Advocates LLP, Westlands Commercial Centre, Nairobi; mokua@mnwlaw.co.ke; +254 733 491 415.