82 3.6 Nomination of Candidates Nomination is the process through which political parties decide candidates who will represent the parties during the elections. Nomination of candidates involves both the political parties and the IEBC. 3.6.1 Political parties 3.6.1.1 Party nominations 3.6.1.1.1 A political party may conduct nominations using either ‘direct party nomination’ or ‘indirect party nomination’ (s 38A, Political Parties Act). 3.6.1.1.2 Direct party nomination means the process by which a political party, through its registered members, elects its candidates for an election. 3.6.1.1.3 Indirect party nomination, on the other hand, refers to the process by which a political party, through the use of delegates selected from registered members of the political party and interviews, selects its candidates for an election. 3.6.1.1.4 Only registered members of a political party, whose names appear in the certified copy of the register of its members, can participate in a political party’s nominations (Section 38C, Political Parties Act). A political party that nominates a candidate for an election must, at least 14 days before submitting the party membership list to the IEBC, submit the list to the Registrar of Political Parties who shall verify the names contained therein and certify it within 7 days of its receipt (Section 28A, Elections Act, 2011). The High Court has ruled that a law requiring political parties to file a list of party members within a set time frame to a general elections, or a law requiring internal party nomination, is necessary for the integrity of the electoral process and is not unconstitutional (Council of Governors v Attorney General & Another, Constitutional Petition 56 of 2017; and Maendeleo Chap Chap Party & 2 Others v IEBC & Another, Petition 179 of 2017). 3.6.1.1.5 The restriction on party hopping during party nominations is not an unreasonable restriction of the Constitution’s Article 38 rights. In Council of Governors v Attorney General & Another, Constitutional Petition 56 of 2017, the Court opined: The provision in question advances a compelling state interest to manage the electoral process efficiently as opposed to the individual interests of petitioners who seem to be interested in looking for an opportunity to shift party allegiance after losing nominations. A law aimed at promoting the legitimate state interest in fair, honest, and orderly elections is in my view consistent with the provisions of the constitution that require elections to be credible… In my view, the challenged provision is necessary in a democratic society to ensure proper preparation and management of the electoral process. What seems to me to be important is that the pre-selection process within a political party is such that it is transparent and transparently exercised free of any taint of electoral fraud or coercion, and one in which party voters at plebiscites and voters at general elections can know with confidence that fair means produced a candidate. 3.6.1.1.6 This position was cited with approval in Maendeleo Chap Chap Party & 2 Others v IEBC & Another, Petition 179 of 2017, and by a 3-judge bench of the High Court in Salesio Mutuma Thuranira & 4 Others v Attorney General & 2 Others; Registrar of Political Parties & 4 Others (Interested Parties), Petition E043, E057 & E109 of 2022 where the constitutionality of the Political Parties Amendment Act 2 of 2022 was challenged. The Court declined to find unconstitutional the BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION