Uncertain times for Moses Wetangula as Supreme Court acts on poll offence

Senate Minority Leader Moses Wetang’ula

Senate Minority Leader Moses Wetang’ula’s political future could be in a precarious position after the Supreme Court of Kenya initiated the process of punishing him for an electoral offence.

On Friday, the Registrar of the Supreme Court formally served the Office of the Director of Public Prosecutions, the Speaker of the Senate and the Independent Electoral and Boundaries Commission with a report of the commission of the election offence of bribery.

This followed a Supreme Court decision on March 17, which affirmed that the Bungoma Senator and CORD co-principal had committed an electoral offence of bribery of voters in the run-up to the March 4, 2013 election. The decision issued by Supreme Court judges Willy Mutunga (Chief Justice), Kalpana Rawal (Deputy Chief Justice), Philip Tunoi, Jackton Ojwang’ and Mohamed Ibrahim has divided lawyers over the implication of the verdict on Wetang’ula’s political future.

“I can confirm we have complied with the orders of the Supreme Court this morning. The matter is now in consideration of the various institutions as directed by the Supreme Court in its decision,” Supreme Court Registrar Esther Nyayieka said last   Friday.

She said on April 1, she served the Speaker of the Senate, the Kenya Law Reform Commission and the Attorney General with the judgement of the Supreme Court as directed by the court. The judges had said the decision should be brought to the attention of the three for consideration of electoral law amendments.

The office of the DPP and the IEBC confirmed receipt of the report and promised to act on it. “Now that the Supreme Court has decided that I consider the matter again, I cannot ignore the court. I will sit down, consider the report and see if there is any basis to reopen the matter. I will give due regard to the judgement of the court in my re-consideration,” DPP Keriako Tobiko said.

Insufficient evidence

He said in the earlier process emanating from the High Court, he had agreed with the police that evidence gathered was not sufficient to sustain a criminal trial. Tobiko said he ordered the closure of the file on that basis.

IEBC Vice-Chair Lilian Mahiri-Zaja confirmed that the commission received the report from the Supreme Court: “We will have to sit down and deliberate on its import and the way forward. Our meeting should be soon because we are at the heart of electoral reforms.”

She promised to get back to The Standard on Sunday once the commission makes a final determination on eligibility of Wetang’ula to contest future election as well as the specific electoral reforms to be drawn out of the ruling.

Treatment of voters

In the March 17 decision, the Supreme Court upheld earlier decisions of the High Court and Court of Appeal, which affirmed that the Bungoma Senator committed electoral offences of bribery and treatment of voters in the run-up to the polls.

The decision, however, quashed the Court of Appeal finding disqualifying the Senator from contesting in the next election and instead ordered the Registrar of Supreme Court to serve a report of the commission of election offence of bribery to the DPP, IEBC and Speaker of the Senate.

Both Wetang’ula and petitioner Musikari Kombo’s lawyers are claiming victory in the matter. The interpretation of Wetang’ula’s lawyers is that even though a finding of bribery against their client was established, the matter ended there.

Kombo’s lawyers, on the other hand, strongly believe that the Supreme Court finding locked out the Bungoma Senator from the 2017 political equation, but allowed the IEBC to take the responsibility of communicating this finding in accordance with Section 87 of the Elections Act.

“For us, the matter is as clear as the day. The Supreme Court separated the two processes of an election petition and a criminal process. All the courts up to the Supreme Court affirmed bribery took place. Specifically, the Supreme Court ordered the IEBC to be served with report on the bribery so that, among other things, it can strike him off the register of voters.”

“The criminal process is distinct from the election court process. Whatever finding the DPP or the court makes in regard to the criminal process against the Senator has no effect on the bribery finding, which automatically locks him out from participating in the next election,” lawyer Alfred Ndambiri, for Kombo, said.

Section 87 of the Elections Act on “report of court on election offences” says once an election offence has been proved, reports written to the relevant organs and published in the Kenya Gazette by the relevant Speaker, “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.”

Lawyer Amos Makokha speaking for Wetang’ula, however, has a different reading: “The finding on election offence notwithstanding, the Supreme Court found out that there were serious contradictions between the Elections Act and the Constitution and proposed electoral law amendments for the future.”

“In the meantime, and arising from import of the Supreme Court decision, the Senator is free to contest in future elections and indeed he participated in the by-elections that took place. The only thing the IEBC can do now is to facilitate the proposed amendments for clarity in the future, nothing else,” Makokha said.

The Wetang’ula case has indeed generated a lot of political interest. The ruling also has a political bearing for the wider CORD fraternity as well as in Western region, where Wetang’ula seeks to affirm his position as the most senior politician.

If Wetang’ula is disqualified, the race for the CORD presidential flag bearer will stay open only to his co-principals, former Prime Minister Raila Odinga and former VP Kalonzo Musyoka. In their decision, the Supreme Court judges had established that there was a basis for reframing the law to delimit the respective mandates of the election court and the ordinary criminal court on offences resulting from an electoral process.