The Independent Electoral and Boundaries Commission says no politician may be struck from the voter register yet, even if found guilty of bribing voters.
In defending its decision not to delete the name of Bungoma Senator Moses Wetang’ula from the voter roll, the commission cited a “lacuna” in the law that makes it difficult to punish anyone found guilty of electoral offences.
“As long as it is just pronounced that there is an offence and that offence has not gone through the process of trial and subjected to evidence, then it just amounts to hearsay,” IEBC Commissioner Thomas Letangule told Citizen TV on Tuesday night.
“I think there is a lacuna in the law. If you look at it, there are no set timelines or guidelines. A certain matter like this one can run for so long and nobody is checking. You cannot touch the decision aspect of it because before you delete the name, there must be a conviction and that is what Section 9 of the Election Act states,” he said.
Mr Letangule chaired the IEBC committee formed to determine whether Mr Wetang’ula should be removed from the voter register, after the High Court found him guilty of bribing voters in the run-up to the 2013 General Election.
Part of its work was to “consider” whether the senator’s name should be deleted, making him ineligible to contest or vote in next year’s General Election. But the committee declined to erase the name, arguing no court of law had convicted him of the offence.
“We find that there is no lawful justification to delete the name of Senator Moses Wetang’ula from the register of voters. Senator Moses Wetang’ula has not been charged or convicted of any election offence,” the committee argued in its verdict.
The decision aroused both criticism and support for the commission. Some said it had showed independence in letting the senator off the hook though he belongs to the Cord coalition, which has demanded the IEBC commissioners pack and go.
Others charged that the public criticism from the Opposition pressured the commission to favour the senator, and buy political capital in turn.
“Nobody [pressured] us, we look at the facts, we look at the law and we balance those interests against [the] interests of particular people within the law,” Mr Letangule said.
“If it were a question of avenging for Cord attacking us, this was an opportunity. We should have left the law aside and deleted the name without considering, if we were that vengeful.”
The commissioner said “our guiding principle” is to use the law, and not emotions or personal influence. But he also blamed Parliament for not acting on suggestions he argued would have strengthened the election laws.
“Parliament is yet to do its duty; we as IEBC are well ahead of time.”
According to him, finding someone guilty without stating the punishment the person should be given means the person has not been convicted.
Yet the Elections Act says a person found guilty of an election offence should be expunged from the register only if the person was jailed or fined for it.
In Kenyan election laws, a court hearing an election petition cannot convict, but can only suggest further investigation to the Director of Public Prosecutions. In Mr Wetang'ula’s case, the DPP found him not culpable in bribing voters.
Mr Wetang’ula’s election in 2013 was challenged in court by his opponent Musikari Kombo. The High Court nullified his win, arguing voters had been bribed and that Mr Wetang'ula was guilty of it.
The senator won the by-election but lost an appeal to have the bribery verdict overturned. The case reached the Supreme Court, which quashed an earlier decision to have him disqualified from future elections.
However, Supreme Court judges upheld the bribery verdict, although they recommended that the IEBC consider whether to delete his name from the register.
“It was difficult, really. Because for us, the Supreme Court did not direct us to do anything. It did not direct us that we do A, B, C, D. What it said was that within the law, 'consider'. If you look at the definition of 'consider', it means having a look at it,” Mr Letangule added.
“The law is not clear on what should be done. It just creates offences but doesn’t say what should be done. And in our view, what we propose as IEBC is for certain amendments be made to all these laws to align it.
“What we are saying is deleting somebody’s name, in this case Wetang’ula, is a very punitive measure. And it affects certain rights.
“If you look at Article 24 of the Constitution, it talks about limitation of rights. Before you limit rights, you must cross-check. The law says the person must have gone through a proper criminal process and convicted.
“There must be some sort of timelines within which certain things must be done. What is lacking is critical timelines to say, the DPP must make a decision within this particular period and those must be within the law," said Mr Letangule.