Bungoma Senator Moses Wetang'ula has pleaded with the Independent Electoral and Boundaries Commission not to delete his name from the voters register because it would be against the “rules of natural justice”.
Mr Wetang'ula told a special committee of the commission that he felt he had already been punished by the litigation.
“No politician in this country since independence has been dragged and dragged through the mud of an electoral cycle the way I have,” he told the committee, chaired by IEBC Commissioner Thomas Letangule.
“And if it is going to be crowned by taking away my rights to vote, to be voted for or to do anything attendant to being a voter or to be voted for will be, to say the least, the height of inexplicable and unjustifiable injustice to any individual."
The Bungoma senator argued that the Supreme Court, despite agreeing with lower courts that he had committed electoral offence, quashed an earlier ruling that he be disqualified from taking part in future elections.
The IEBC Committee will now deliberate on his arguments before deciding his fate on January 20.
Earlier, lawyers representing Mr Wetang'ula asked the Independent Electoral and Boundaries Commission (IEBC) not to bar him from elections, arguing that he is not a convict.
Mr Wetang'ula’s legal team put in a spirited explanation in a bid to save the opposition co-principal from being removed from the voters roll.
Siaya Senator James Orengo, who was leading the legal team, told the IEBC Committee that it would be wrong for the Bungoma politician to be punished for an offence the courts shied from convicting him on.
“He has not been convicted of an election offence, (and) hence he cannot be barred. You can commit an offence, but you have not been convicted of that offence,” Mr Orengo argued.
“Like in the jury system, the juries can say you committed an offence, but it is the judge to convict you of that offence. This distinction if very important and the law is very clear.”
The IEBC team is chaired by commissioner Thomas Letangule and includes other members such as IEBC commissioners Lilian Mahiri-Zaja and Mr Mohamed Alawi. Crispin Owiye (IEBC’s investigations and prosecutions manager) is secretary and Moses Kipkosgei is the committee’s assisting counsel.
VERDICT BY JAN 20
It was supposed to sit through Tuesday to hear from Mr Wetang'ula’s defence before announcing its verdict by January 20.
The Tuesday session was supposed to be for the Bungoma politician to explain to the IEBC Committee why his name should not be struck off the voters roll, despite being found guilty of bribing voters.
It is a meeting that has both legal and political consequences, given that Mr Wetang'ula is the Ford-Kenya leader and a co-principal in the opposition Coalition for Reforms and Democracy (Cord), alongside Raila Odinga and Kalonzo Musyoka. He is also the voice of Cord in the Senate as the minority leader.
Last month, the IEBC formed a five-member team to determine the fate of Mr Wetang’ula, after Attorney-General Githu Muigai advised that he should be heard first.
Under the general penalties provided for in the Elections Act, a person who commits an election offence is liable, on conviction, to a fine not exceeding one million shillings, imprisonment for a term not exceeding three years or both.
But the same Act says a person convicted of an election offence shall not be eligible for election or nomination in an election for a period of five years following the date of the conviction.
The IEBC has clarified that the session going on at the Milimani Law Courts will not be a reopening of the case on his electoral conduct, but will be a public hearing on whether the commission should mete out the punishment that includes removal from the official voters register under Section 87(3) of the Elections Act.
Legally, the commission is supposed to consider a report from the court and determine action on the findings of the judges. The senator’s lawyers argued on Tuesday that considering a report may not necessarily mean proceeding to strike him from the voters register.
The Director of Public Prosecutions is the only other party invited to the session, apart from Mr Wetang'ula’s lawyers.
The committee, by hearing the senator, will be scrutinising the High Court’s ruling, made in Bungoma, that found Mr Wetang’ula guilty of election fraud, as well as the Court of Appeal’s and the Supreme Court’s decisions that affirmed the appellate court's verdict.
Mr Wetang'ula’s election to the Senate in 2013 had, in fact, been nullified by the High Court, but the Senator was overwhelmingly voted back in a by-election.
The Supreme Court confirmed Mr Wetang'ula’s guilt and the Senate published its ruling on October 23 last year.
If the committee decides on January 20 that Mr Wetang’ula should be removed from the voters roll, it means he will not take part in 2017 elections despite being a key principal in Cord.