Blow to ODM, as party is blamed for six petition losses

By PROTUS ONYANGO and DENNIS ONYANGO

Kenya: The latest court rulings nullifying elections prompted by petitions has hit Orange Democratic Movement (ODM) strongholds hardest.

So far, the court has nullified six elections in the Nyanza region, the highest number in the country. Some observers believe most of these nullifications have triggered by electoral malpractices at party primaries and the General Election in March 2013.

There have been nullifications in Bomachoge Borabu, Nyaribari Chache, Nyando and Bonchari (parliamentary), as well as Migori and Siaya gubernatorial elections.

This month, the court ordered fresh elections in Bonchari constituency shortly before it ruled that there would be by-elections in Nyando constituency and Migori county, after the Court of Appeal nullified Fred Outa and Okoth Obado’s elections as MP and governor respectively.

When judges of the Court of Appeal nullified the election of Obado and   Outa, they cited election malpractices. Outa suffered another setback when the three-judge Bench reported him to the Director of Public Prosecutions, the Independent Electoral Boundaries Commission (IEBC) and Speaker of National Assembly and singled him out for prosecution for election bribery.

CDF Misuse

The bench, comprising Justices Phillip Waki, David Maraga and Sankale ole Kantai, indicated that they had complied with Section 86 (1) and 87 (1) of the Elections Act in nullifying the election following an appeal filed by Jared Okelo.

Witnesses in the case accused Outa of issuing a Constituency Development Fund (CDF) cheque for Sh1 million at Ayier Gweng Community Dam and asked people to vote for him. They also said his CDF chairman presented a Sh500,000 cheque to Sare Primary School after which Outa asked for votes. “We find the timing of the release of the cheques in campaign rallies in the last 10 days before General Election irregular. It is hereby reported that Outa was found to have committed the election offence of bribery,” said Justice Festus Azangalala, who read the judgment on behalf of his colleagues.

The court also found Outa guilty of using public resources to campaign by having CDF treasurer Geoffrey Yogo as his chief agent during campaigns. They stated that Outa was aware it was contrary to Public Officers Act of 2003. “We are satisfied that by getting Yogo to sign his nomination papers as his supporter and to campaign for him, he committed an election offence by using public resources,” he said.

In Obado’s case, the IEBC was blamed for causing gross errors that culminated in constitutional breaches, which affected the validity, legality and credibility of the results.

“Those breaches were unjust to the candidates, the electorate and did not inspire confidence in the general public,” said Justice Onyango Otieno.

In the appeal filed by Edward Oyugi, Justices Otieno, William Ouko and Kantai ordered IEBC to pay Obado and Oyugi Sh1 million each. “We hold that the election of the governor of Migori County was unfairly conducted and that the irregularities affected the results,” Justice Otieno said.

The judges said IEBC’s conduct in the Migori poll could be compared to the defunct Electoral Commission of Kenya’s careless handling of the 2007 election.

“It appears to us from the kind of irregularities and mistakes committed in Migori gubernatorial elections that the very same mistakes noted by the Independent Review Commission on Election Violence in Kenya were re-enacted by a different cast. This begs the question whether there were any lessons learnt from the 2007 General Election,” Justice Otieno said.

They pointed out that IEBC and the Returning Officer failed to comply with Election Regulations Act, which elaborates provision on the process of vote counting, rejection of ballot papers, recount, tallying and announcement of results and final tallying.

The IEBC acknowledged that there were indeed errors in the poll but attributed this to fatigue-induced human error.

However, the judges said this action was inexcusable.

Last week, the Court of Appeal pointed an accusing finger at prominent politicians in Nyanza and said they were responsible for numerous elections malpractices during last year’s General Election.

The court singled out electoral malpractices committed by Siaya Governor Cornel Rasanga, Senator James Orengo, Women’s representative Christine Ombaka and MPs Oburu Oginga, Jakoyo Midiwo and David Ochieng against governor aspirant William Oduol during the campaign period last year.

Some of the politicians were accused of being part of an ‘ODM brigade’ that invaded a rally being addressed by Oduol at Luthehe market.

The “invasion” of another person’s rally is an offence under Section 67 of the Elections Act… These kinds of irregularities, malpractices, bullying, mud-slinging, unlawful propaganda, and dirty tricks attracted the High Court censure,” they said in a ruling. Recently, politician Polycarp Atinga sued the ODM to recover nomination fees after he was denied a chance to vie for a senator’s seat in the last General Election. Atinga accused the party leadership of refusing to refund him Sh250,000 after blocking him from contesting   the elections.

Dr Atinga said he paid the nomination fee to the National Elections Board so that he could vie for the Migori County senate seat but was informed that the position had been reserved for someone else.  “I was shocked to learn that my name was omitted as a contestant despite having paid Sh250,000,” he said.

The rulings point to serious anomalies in the way the elections are conducted during the General Election and party primaries.

Some politicians in Nyanza blame a clique of politicians around former Prime Minister Raila Odinga, who they accuse of giving themselves nomination certificates and deliberately causing mayhem during party primaries. They say the party nominations are often terribly flawed and supervised by corrupt returning officers. “I won the party nomination but the certificate was given to my rival Otieno Kajwang,” Hillary Alila, who vied for the senatorship in Homa Bay, said.

“There were no elections which took place in Kabondo-Kasipul, Kasipul, Rangwe, Homa-Bay town, Ndhiwa, Mbita and Gwassi. The materials arrived 24 hours after the expiry of the deadline set by IEBC,” Alila said.

Former Kasipul Kabondo MP Owidi Odoyo supports Alila. “Nominations were often marred by the non-arrival or late arrival of election materials from the ODM headquarters in Nairobi. There was massive corruption perpetrated by those who were appointed and sent to rural constituencies either as presiding or returning officers as well as polling clerks,” Odoyo observed.

All too often the personnel   responsible for supervising the nomination exercises were bribed to declare losers as winners and then fake stories of kidnapping, he said.

“Let us work towards having fair party nominations where we do not favour relatives instead of fighting those who hold divergent views,” Odoyo added.

The chairman of the Law Society of Kenya (LSK) Eric Mutua says the nullification of election results point to processes that are abused.  “IEBC, political parties and politicians are to blame. There are rules that govern elections and if they are strictly enforced, nullifications would be minimised,” Mr Mutua says.

In October last year, two Kisii county MPs, Bomachoge Borabu’s Joel Onyancha and his Nyaribari Chache counterpart Chris Bichage were sent packing on grounds that their elections were marred by electoral malpractice.

The National Alliance (TNA) candidate in the Bomachoge Borabu by-election Onyancha retained his seat following a tight race with his rival ODM’s Peter Kimori.

Bonchari constituency is the only one in Kenya that has been served by two MPs for six months each after the General Election.

John Oyioka got the seat after winning a petition last September that he filed challenging the declaration of Zebedeo Opore as the duly elected MP for the constituency in March 4, 2013 polls. Opore was declared winner with 8,992 votes against Oyioka’s 8,987 votes.

However, a three-judge Bench comprising Justices Daniel Musinga, Festus Azangalala and Sankale ole Kantai came to the