Why Kinyua, top Jubilee officials risk prosecution over information portal

Jubilee administration has come under criticism for breaking the law when they launched a portal on Monday, detailing their achievements since getting into power.

Long-serving lawyer Apollo Mboya, who is also former Law Society of Kenya chief executive, has in a letter addressed to the Director of Public Prosecutions (DPP) dated April 12, requested the office to institute criminal proceedings against those found to have violated the law.

Section 14 of the Election Offences Act, 2016 provides that, a candidate, referendum committee or other person shall not use public resources for the purpose of campaigning during an election or referendum.

It also provides that no government shall publish any advertisements of achievements of the respective government either in the print media, electronic media, or by way of banners or hoardings in public places during the election period.

According to Mr Mboya, the election period has been defined in section 2 of the said Act as: “The period between the publication of a notice by the Electoral Commission for presidential, parliamentary or county election as provided under the Elections Act, 2011 and the gazettement of the election results.”

CRIMINAL PROCEEDINGS

The Independent Electoral and Boundaries Commission (IEBC) had through a special gazette notice, of March 17, published a notice for presidential, parliamentary or county election.

However, on Monday this week, President Uhuru Kenyatta together with his deputy William Ruto, launched a public information portal to showcase various national government programmes and projects across the country.

“The actions by the government contravened the provisions of the Elections Offences Act, specifically Section 14(1) and (2), hence criminal in nature,” said Mr Mboya.

He wants the DPP to institute criminal proceedings against those culpable, within the next seven days, adding that if the DPP is unable for whatever reasons, he should promptly communicate the same so that private prosecution can commence.

The DPP can only commence prosecution against the organisers of the event and the financiers, but not the president who is shielded from criminal prosecution during his term in office, given his constitutional functions, duties and powers.

Mr Mboya said that among those he expects to be held accountable are Head of Public Service and any accounting officer who paid money for the making of the portal as well as those who paid for the adverts, “because what they did is what the law outlaws.”