96 3.8.2 Election Campaign Finance Regulation 3.8.2.1 Another element of political campaigns is election campaign financing regulation. Regulation of campaign financing is one of the constitutional mandates of the IEBC (Article 88(4)(i) of the Constitution). The Election Campaign Financing Act (Act 42 of 2013) is still awaiting full operationalisation through regulations, which were not adopted by Parliament either for the 2017 or 2022 elections. The Act is also hampered in its effectiveness by the fact that it only seeks to regulate campaign financing during the gazetted campaign period, thus excluding from its scope any funds raised before, which form the bulk of the funds raised for campaigns. 3.8.2.2 As part of its role of levelling the electoral playing field, Kenyan electoral law also makes it an offence to use public resources for campaigns (s 14, Election Offences, 2016). The IEBC is empowered to require an account from candidates who are members of Parliament, Governors, Deputy Governors or members of County Assemblies of the facilities which are in their custody, by virtue of their office, and to impound any resources improperly used during campaigns (s 14(7), Election Offences Act). It is noteworthy that the statute does not require an account from presidential candidates who are seeking re-election or deputy presidents seeking to ascend to the presidency, thus creating an accountability gap (Raila Odinga v IEBC & 2 Others, Supreme Court Presidential Petition 1 of 2017). Despite the clear ban, the continued use of state resources during campaigns is well documented, with acts such as the launch of government projects, use of government vehicles, use of chiefs as campaign agents, and distribution of relief food during campaigns being witnessed. 3.8.2.3 Regulation of campaign spending is crucial for precluding the use of illicit money to corrupt the political process. Failure to regulate the use of state resources during elections, taken together with the lack of an operational campaign financing regime, allows a few individuals to influence the electoral process. Thus increasing the high stakes nature of elections and increasing the propensity towards violence. The injection of funds in campaigns by wealthy individuals also carries with it an expectation that their interests would be protected through quid pro quo corruption, and it, therefore, facilitates state capture by a minority elite. 3.8.2.4 The Election Campaign Financing Act anticipates the gazetting of spending limits which delimit how much a candidate, political party or referendum committee may spend during the expenditure period, including the limit for media coverage (s 18, Election Campaign Financing Act, 2013). The Act also empowers the IEBC to make Regulations to give effect to the Act, which must be tabled before Parliament before they are adopted. 3.8.2.5 Parliament, in declining to adopt Regulations in 2017, indicated that there was need to revise the formula used by the IEBC to set spending limits as well as the process of reporting under the Act, which required reporting on campaign spending by both candidates and political parties. It was argued that requiring candidates of political parties to report duplicated the obligation to submit party audited reports to the Office of the Registrar of Political Parties. In 2021, it also declined to pass the Regulations, ostensibly because the IEBC had tabled them late in the day. Editorial Note: Katiba Institute & 3 Others v IEBC & 3 Others, Constitutional Petition E540 & E546 of 2021, sought a declaration that the Regulations contemplated by Article 88(4)(i) of the Constitution, in relation to election campaign financing, did not require Parliamentary approval since they were constitutional instruments rather than statutory instruments. However, the High Court ruled that the making of regulations and rules was enabled by the provisions of sections 5, 12, 18, 19 and 29 of the Election Campaign Finance Act, and, therefore, the Regulations BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION