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Hundreds risk jail term, fines over election-related offences

IEBC materials destroyed by the public in Tharaka Nithi County. [Courtesy]

Individuals who committed various offences during this year’s General Election risk jail terms and hefty fines if found guilty by the courts.

Already, the Director of Public Prosecutions  Noordin Haji has fingered at least 100 suspects, who were identified by his team, which had been deployed to observe the elections, as part of a Memorandum of Agreement signed between his office and the Independent Electoral and Boundaries Commission. 

They risk being jailed for six years or fined Sh2 million once investigations are completed and they are charged in court with committing various offences. 

In accordance with the MoU, ODPP prosecutors monitored the polls, collected vital evidence, which will be subjected to further investigated by a joint team that will be set up by the two agencies.  

The agreement, which has a span of two years, saw the IEBC and the ODPP appoint focal contact persons as liaison officers between the IEBC and the ODPP for all routine issues.

During this year’s elections, IEBC Chairperson Wafula Chebukati and DPP Noordin Haji identified harassment, intimidation, murder, violence, ethnic profiling, and use of public resources as the main malpractices committed this year.

“Why must an election officer be murdered after every general election? Whose ghost do we anger by performing our constitutional duties?” Chebukati asked after the Supreme Court upheld President William Ruto’s victory. Ruto garnered 50.5 per cent of the vote, compared to 48.8 per cent for Azimio leader Raila Odinga.

Judges said that some petitioners had falsified evidence.

“We have already put in place plans to apprehend and charge criminal elements who want to take advantage of the elections to cause problems. No one should think they can engage in criminal acts and escape punishment. They will be shocked as we will apprehend and prosecute them,” Haji announced in a press statement 12 days before the polls.

An ODPP report on August 11 showed that violence and intimidation accounted for 22 percent of the total election-related offences.  Bribery followed at 14 per cent, while hate speech cases were reported at 12 per cent.

Others are false information (19 per cent), ballot paper offences (7 per cent), and preparation to commit a felony (5 per cent).

“To date, no one has been arrested for this crimes committed against the Commission and its staff. As it stands, no human rights and and civil society organisation have condemned these heinous acts,” Chebukati said.

Breach of the electoral code of conduct, causing disruption, and interfering with election materials were all reported at three per cent. Offences by IEBC accounted for only two percent, while other offences reported accounted for eight per cent.

“A special team will be set up to investigate crimes committed during the elections and ensure the culprits are charged,” a source at the DPP office said.

The MoU outlined ways to address the election malpractices in a bid to stop the election violence cycle, which has exposed millions of Kenyans to rape, death, destruction of property and displacement of thousands of families during every election period.

Haji and Chebukati said that the most committed crimes during this year’s election included hate speech, violence, intimidating others, and the use of public resources to campaign.

“According to the law, a person who is convicted of an offence under this Act shall not be eligible for election or nomination in an election for five years following the date of conviction,” the law says.

In line with the MoU, the ODPP has set aside a team of 200 prosecutors who will work closely with the IEBC investigators in a new team to be set up in a couple of weeks.

“The MoU provides a roadmap to prosecute election offences in the run-up to the 2022 general elections and any subsequent repeat elections that may occur.

IEBC and ODPP will take a common position regarding the interpretation or validity of disputes.

“Recognising that understanding the prosecution of election-related offences is mutually beneficial to the IEBC and the ODPP, mutual benefits and understanding on the prosecution of election-related offences,” the MoU said.

“The cooperative activities that are executed under this MoU and are performed in Kenya shall be implemented concerning and under existing laws and regulations of the Republic of Kenya.”

The MoU encourages IEBC investigators and ODPP prosecutors who have a shared responsibility in individual cases to communicate regularly to enhance access to information through cooperation between both parties.

This MoU encourages both parties to communicate any changes in policy and procedure that might have an impact on the work of the other party.

The two organizations will cooperate to provide evidence, exhibits, and other relevant information resulting in any election offence cases.

ODPP and IEBC will work closely to provide relevant information that can be used for prosecution.

The MoU brings together and outlines a clear structure of working together, roping in state investigation agencies with a common goal to protect IEBC officers, and wananchi and end the culture of impunity during the election period.

On August 4, the DPP warned Kenyans against voting using the names of other people, whether dead or alive, at a polling station, which is some of the offences that will be investigated.

Haji, in a statement, asked Kenyans to avoid impersonating an election official, avoid voting more than once, and use public resources for campaigns.