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By AGGREY MUTAMBO
The Independent Electoral and Boundaries Commission says no
politician may be struck from the voter register yet, even if found
guilty of bribing voters.
In defending its decision not
to delete the name of Bungoma Senator Moses Wetang’ula from the voter
roll, the commission acknowledged there is a “lacuna” in law that makes
it difficult to punish anyone found guilty of electoral offences.
“As
long as it is just pronounced that there is an offence and that offence
has not gone through the process of trial and subjected to evidence,
then it just amounts to hearsay,” IEBC Commissioner Thomas Letangule
told Citizen TV’s "The Big Question" show on Tuesday night.
“I
think there is a lacuna in the law. If you look at it, there are no set
timelines or guidelines. A certain matter like this one can run for so
long and nobody is checking. You cannot touch the decision aspect of it
because before you delete the name, there must be a conviction and that
is what Section 9 of the Election Act states.”
Mr
Letangule chaired the IEBC committee formed to determine whether Mr
Wetang’ula should be removed from the voter register, after the High
Court found him guilty of bribing voters in the run-up to the 2013
General Election.
Part of its work was to “consider”
whether the senator’s name should be deleted, making him ineligible to
contest or vote in next year’s General Election. But the committee
declined to erase the name, arguing no court of law had convicted him of
the offence.
“We find that there is no lawful
justification to delete the name of Senator Moses Wetang’ula from the
register of voters. Senator Moses Wetang’ula has not been charged or
convicted of any election offence,” the committee argued in its verdict.
SHOWED INDEPENDENCE
The
decision aroused both criticism and support for the commission. Some
said it had showed independence in letting the senator off the hook
though he belongs to the Cord coalition, which has demanded the IEBC
commissioners pack and go.
Others charged that the
public criticism from the Opposition pressured the commission to favour
the senator, and buy political capital in turn.
“Nobody
[pressured] us, we look at the facts, we look at the law and we balance
those interests against [the] interests of particular people within the
law,” Mr Letangule said.
“If it were a question of
avenging for Cord attacking us, this was an opportunity. We should have
left the law aside and deleted the name without considering, if we were
that vengeful.”
The commissioner said “our guiding
principle” is to use the law, and not emotions or personal influence.
But he also blamed Parliament for not acting on suggestions he argued
would have strengthened the election laws.
“Parliament is yet to do its duty; we as IEBC are well ahead of time.”
According
to him, finding someone guilty without stating the punishment the
person should be given means the person has not been convicted.
Yet
the Elections Act says a person found guilty of an election offence
should be expunged from the register only if the person was jailed or
fined for it.
CANNOT CONVICT
In
Kenyan election laws, a court hearing an election petition cannot
convict, but can only suggest further investigation to the Director of
Public Prosecutions. In Mr Wetang'ula’s case, the DPP found him not
culpable in bribing voters.
Mr Wetang’ula’s election in
2013 was challenged in court by his opponent Musikari Kombo. The High
Court nullified his win, arguing voters had been bribed and that Mr
Wetang'ula was guilty of it.
The senator won the
by-election but lost an appeal to have the bribery verdict overturned.
The case reached the Supreme Court, which quashed an earlier decision to
have him disqualified from future elections.
However,
Supreme Court judges upheld the bribery verdict, although they
recommended that the IEBC consider whether to delete his name from the
register.
“It was difficult, really. Because for us,
the Supreme Court did not direct us to do anything. It did not direct us
that we do A, B, C, D. What it said was that within the law,
'consider'. If you look at the definition of 'consider', it means having
a look at it,” Mr Letangule added.
“The law is not
clear on what should be done. It just creates offences but doesn’t say
what should be done. And in our view, what we propose as IEBC is for
certain amendments be made to all these laws to align it.
“What
we are saying is deleting somebody’s name, in this case Wetang’ula, is a
very punitive measure. And it affects certain rights.
“If
you look at Article 24 of the Constitution, it talks about limitation
of rights. Before you limit rights, you must cross-check. The law says
the person must have gone through a proper criminal process and
convicted.
“There must be some sort of timelines within
which certain things must be done. What is lacking is critical
timelines to say, the DPP must make a decision within this particular
period and those must be within the law," said Mr Letangule.
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