Post by mwalimumkuu on Jan 20, 2016 2:11:51 GMT 3
The IEBC earlier today delivered the long awaited verdict on Hon. Moses Masika Wetangula. For starters, IEBC was tasked with considering the findings of the Supreme Court of Kenya as gazetted by the senate speaker Hon Ekwe Ethuro on allegedly voter bribery in Bungoma in 2013 and whether his name should be struck off the voter register. The IEBC returned the verdict of 'a no lawful justification for removing his name in the register'. Is this true? Consider the following:
Background
In 2013, the country went to elections. Mr. Wetangula together with others including Mr. Musikari Kombe offered themselves to the Bungoma county electorate to be considered for the county's senate seat. During the ensuing campaigns, all candidates sold themselves to the electorate in the best ways they know how. At the end of the exercise, Mr. Wetangula was declared winner, pipping his main rival Musikari Kombo with a very narrow margin.Wetangula went ahead to be sworn in as not just the Senator for Bungoma, but also as the minority leader in the senate.
Court Cases
Musikari Kombo considered all the facts and evidence available to him and decided to challenge the outcome of the elections in a court of law in Kitale. He argued that Hon. Wetangula had induced and bribed voters in the run-up to the elections. The judge after considering the evidence before him and Wetangula's arguments, agreed with Kombo that Wetangula had engaged in electoral malpractice and nullified the elections, but never barred Wetangula from participating in the subsequent elections arguing that he lacked the jurisdiction to do so. Wetangula, although allowed by the court to vie, realized the implications of this ruling and appealed the ruling in Kisumu. While the Kisumu court was still considering the case, the by-election came and passed with Wetangula winning the seat again, this time with even a bigger margin over his closest rival Kombo. Unfortunately, for Wetangula, the Kisumu court returned the same verdict as the Kitale court, that he was guilty of electoral offense. This time, the court required the DPP to consider the culpability of the senator with a view to instituting criminal proceedings against him. The DPP found no enough evidence to sustain a criminal case against the senator. Unsatisfied, Wetangula moved to the Supreme Court of Kenya, which like the other two lower courts returned a similar verdict, of guilt of electoral offense. The SCOK served the speaker of the senator with their findings and gazettement as required by the law.
IEBC proceedings
Soon after the verdict of the supreme court, the events that followed have pointed to institutions that are captive of the political class in the country. It should be remembered that the SCOK passed its verdict on the senator way back in March 2015. A simple process as gazetting the court findings by the senate speaker never took place until Kenyans of good will started to question what was going with the senator's case. It is at this point that the speaker, later in October gazetted the report, setting the stage for IEBC to move in.
IEBC itself, looked confused from the get go. They were never sure whether to strike the senator off the register immediately, wish the whole issue away or have a quasi-judicial process. A lot was written in the media on how several meetings had been held by IEBC officials on this issue without any agreement. Finally, it was agreed, going by the AG's advise that the senator should be given a hearing before any action is taken against him if any. Why? Only the AG and IEBC know. Later, in November, IEBC communicated that they will be requiring Wetangula to appear before them in January 2016 (buying time, right?). They met him last week and today returned the already stated verdict
The law
Now what does the law say about electoral offenses? The relevant law that guides such procedure states as follows:
87. Report of court on election offenses
(1) An election court shall, at the conclusion of the hearing of a petition, in addition to any other orders, send to the Director of Public Prosecutions, the Commission and the relevant Speaker a report in writing indicating whether an election offense has been committed by any person in connection with the election, and the names and descriptions of the persons, if any, who have been proved at the hearing to have been guilty of an election offense.
(2) Before a person, not being a party to an election petition or a candidate on whose behalf the seat is claimed by an election petition, is reported by an election court, the elections court shall give that person an opportunity to be heard and to give and call evidence to show why he should not be reported.
(3) The relevant Speaker shall publish a report made under this section in the Gazette, and the Commission shall consider the report and delete from the register of voters, the name of a person who is disqualified from being registered in that register of voters.
From the foregoing sections of the law, it is clear that: 1. Wetangula was accorded full hearings by not one court or two, but three. He called his evidence and argued as to why he should not be reported. He failed to convince all the three courts. The speaker published the report. So why exactly did IEBC find it necessary to summon Wetangula to another hearing? What evidence did Wetangula adduce to IEBC that he never gave to the three courts? His lawyers had compellingly argued that, the election for which the senator ought to have been disqualified were the repeat elections which had already happened. They however forgot that, the senator had appealed the decision and could not therefore be disqualified while the case was pending in court. 2. The reading of the law above does not suggest to me that IEBC has any meaningful role to play in determining the guilt or otherwise of the person in whose name the report is made. They only consider the report as a basis upon which one is struck off the register.
Implications of IEBC verdict
By IEBC arguing that, Wetangula has not been convicted of any criminal offense and therefore not culpable of any other punishment, IEBC has opened itself up for many problems and set very bad precedence. It is clear from their ruling and behavior since this matter came up that, they have no slightest idea of how to implement their own laws. It also means that anyone can indulge in whatever electoral malpractice and get away with it as long as they are not criminally liable. How exactly does IEBC intend to contain the chaos that we are likely to witness in electioneering due to this judgment.
Conclusion
Whichever way you look at this process, justice was miscarried. The relevant authorities from the speaker of the senate to IEBC struggled with this issue. In the end, the wrong outcome was entered. Whereas CORD has loudly and happily celebrated the outcome, it has exposed them for the selfish leaders that they are. For IEBC, they have lost many more who had little semblance of trust in them. Shame, bure kabisa!
~~ Mwalimumkuu @nyumbakubwa ~~
Background
In 2013, the country went to elections. Mr. Wetangula together with others including Mr. Musikari Kombe offered themselves to the Bungoma county electorate to be considered for the county's senate seat. During the ensuing campaigns, all candidates sold themselves to the electorate in the best ways they know how. At the end of the exercise, Mr. Wetangula was declared winner, pipping his main rival Musikari Kombo with a very narrow margin.Wetangula went ahead to be sworn in as not just the Senator for Bungoma, but also as the minority leader in the senate.
Court Cases
Musikari Kombo considered all the facts and evidence available to him and decided to challenge the outcome of the elections in a court of law in Kitale. He argued that Hon. Wetangula had induced and bribed voters in the run-up to the elections. The judge after considering the evidence before him and Wetangula's arguments, agreed with Kombo that Wetangula had engaged in electoral malpractice and nullified the elections, but never barred Wetangula from participating in the subsequent elections arguing that he lacked the jurisdiction to do so. Wetangula, although allowed by the court to vie, realized the implications of this ruling and appealed the ruling in Kisumu. While the Kisumu court was still considering the case, the by-election came and passed with Wetangula winning the seat again, this time with even a bigger margin over his closest rival Kombo. Unfortunately, for Wetangula, the Kisumu court returned the same verdict as the Kitale court, that he was guilty of electoral offense. This time, the court required the DPP to consider the culpability of the senator with a view to instituting criminal proceedings against him. The DPP found no enough evidence to sustain a criminal case against the senator. Unsatisfied, Wetangula moved to the Supreme Court of Kenya, which like the other two lower courts returned a similar verdict, of guilt of electoral offense. The SCOK served the speaker of the senator with their findings and gazettement as required by the law.
IEBC proceedings
Soon after the verdict of the supreme court, the events that followed have pointed to institutions that are captive of the political class in the country. It should be remembered that the SCOK passed its verdict on the senator way back in March 2015. A simple process as gazetting the court findings by the senate speaker never took place until Kenyans of good will started to question what was going with the senator's case. It is at this point that the speaker, later in October gazetted the report, setting the stage for IEBC to move in.
IEBC itself, looked confused from the get go. They were never sure whether to strike the senator off the register immediately, wish the whole issue away or have a quasi-judicial process. A lot was written in the media on how several meetings had been held by IEBC officials on this issue without any agreement. Finally, it was agreed, going by the AG's advise that the senator should be given a hearing before any action is taken against him if any. Why? Only the AG and IEBC know. Later, in November, IEBC communicated that they will be requiring Wetangula to appear before them in January 2016 (buying time, right?). They met him last week and today returned the already stated verdict
The law
Now what does the law say about electoral offenses? The relevant law that guides such procedure states as follows:
87. Report of court on election offenses
(1) An election court shall, at the conclusion of the hearing of a petition, in addition to any other orders, send to the Director of Public Prosecutions, the Commission and the relevant Speaker a report in writing indicating whether an election offense has been committed by any person in connection with the election, and the names and descriptions of the persons, if any, who have been proved at the hearing to have been guilty of an election offense.
(2) Before a person, not being a party to an election petition or a candidate on whose behalf the seat is claimed by an election petition, is reported by an election court, the elections court shall give that person an opportunity to be heard and to give and call evidence to show why he should not be reported.
(3) The relevant Speaker shall publish a report made under this section in the Gazette, and the Commission shall consider the report and delete from the register of voters, the name of a person who is disqualified from being registered in that register of voters.
From the foregoing sections of the law, it is clear that: 1. Wetangula was accorded full hearings by not one court or two, but three. He called his evidence and argued as to why he should not be reported. He failed to convince all the three courts. The speaker published the report. So why exactly did IEBC find it necessary to summon Wetangula to another hearing? What evidence did Wetangula adduce to IEBC that he never gave to the three courts? His lawyers had compellingly argued that, the election for which the senator ought to have been disqualified were the repeat elections which had already happened. They however forgot that, the senator had appealed the decision and could not therefore be disqualified while the case was pending in court. 2. The reading of the law above does not suggest to me that IEBC has any meaningful role to play in determining the guilt or otherwise of the person in whose name the report is made. They only consider the report as a basis upon which one is struck off the register.
Implications of IEBC verdict
By IEBC arguing that, Wetangula has not been convicted of any criminal offense and therefore not culpable of any other punishment, IEBC has opened itself up for many problems and set very bad precedence. It is clear from their ruling and behavior since this matter came up that, they have no slightest idea of how to implement their own laws. It also means that anyone can indulge in whatever electoral malpractice and get away with it as long as they are not criminally liable. How exactly does IEBC intend to contain the chaos that we are likely to witness in electioneering due to this judgment.
Conclusion
Whichever way you look at this process, justice was miscarried. The relevant authorities from the speaker of the senate to IEBC struggled with this issue. In the end, the wrong outcome was entered. Whereas CORD has loudly and happily celebrated the outcome, it has exposed them for the selfish leaders that they are. For IEBC, they have lost many more who had little semblance of trust in them. Shame, bure kabisa!
~~ Mwalimumkuu @nyumbakubwa ~~