Why IEBC let Senator Moses Wetang'ula off hook

It has emerged that the electoral agency hired constitutional experts to help interpret its mandate in the case against Bungoma Senator Moses Wetang’ula.

Their opinion and independent research was behind the decision not to delete Mr Wetang’ula’s name from the voters’ register since he had not been convicted for any election malpractices.

At the heart of the interpretation was that the Constitution is very clear on the fundamental right to vote, the right to be voted for and the right to vote for someone else.

Wetang’ula, who had been accused of dishing out money to woo voters, walked out of court yesterday

in jubilation after a three-member bench ruled that there were no grounds to expunge him from the voters’ register.

In the 42-page ruling, the Independent and Electoral Boundaries Commission (IEBC) ruled that no court had found the CORD co-principal guilty of any wrongdoing.

“The Bungoma senator has not been charged in any court for any offence, thus there is no lawful justification for the commission to strike him out of the voters’ list,” the three-member bench led by commissioner Thomas Letangule ruled.

FROM LEFT: CORD leader Raila Odinga, Bungoma Senator Moses Wetang'ula and Wiper leader Kalonzo Musyoka at the Milimani Law Courts yesterday after IEBC ruled that Wetang'ula's name would remain on the voters' register. (PHOTO: FIDELIS KABUNYI/ STANDARD)

Wetang’ula was also saved by what the commissioners described as ‘grey areas’ in the IEBC Act that were in conflict with the Constitution. They noted that section 87 of the Act, which proposes the deletion of the name of an offender from the voters register, lacks clarity.

“We wrote to Parliament asking them to make changes in order to clear the vague issues. The bill is still before the committee to date,” the commissioners said.

“Hence deleting Wetang’ula name from the voter register would infringe on his rights,” they concluded.

The decision between Letangule, Lilian Mahiri-Zaja and Mohamed Alaw was unanimous that the senator will not be struck out of the voters’ list, noting that the current law is unclear on what process is to be followed from investigations to the last stage of expunging an individual.

The three members were of the conviction that an independent body rather than the normal process of prosecuting a suspect should litigate electoral malpractices’ issues.

In their decision read for close to one hour, they held that the law as it is required one to be taken to criminal court where criminal culpability would be founded before the electoral body cracked a whip on the individual.

 Residents celebrate

“We are in difficulty to find that the senator was convicted, as the courts did not find him as such,” they said, adding the law regulating elections conduct was unclear whether one ought to be held culpable through the normal criminal or civil process.

The commissioners were also in agreement that Director for Public Prosecutions (DPP) Keriako Tobiko also did not find any case against the senator. “Conviction requires a criminal process in which a criminal court determines the culpability of the accused person. In this issue, the DPP recommended closure of the file that was passed to him,” they said.

Meanwhile, politicians in Western welcomed the ruling yesterday. In Bungoma town, residents marched in the streets carrying placards and twigs in praise of the CORD co-principal and thanked the electoral body for the verdict. Ford Kenya Party Secretary General and Tongaren MP Simiyu Eseli said they are happy with the verdict, adding it was unfortunate the matter took long to be completed. “Torturing Wetang’ula for no reason was uncalled-for,” he said.

ODM Chairman and Suba MP John Mbadi termed the trial a misplaced one and a waste of time for IEBC and the senator. “Wetang’ula had gone through a process and won the by-election. Why subject someone to a lot of frustrations for no reason?” he posed.