The Independent Electoral and Boundaries Commission (IEBC) heads to a potentially tumultuous week as public focus shifts on its special committee that will be hearing Bungoma Senator Moses Wetang’ula’s election offence case.
The Special Committee will on Tuesday hold a public hearing on whether or not to remove the Senate Minority Leader’s name from the voters’ register under Section 87(3) of the Elections Act based on the Supreme Court judgment that found him guilty of voter bribery.
The committee was established by IEBC to make recommendations on what should be done on the election bribery offence against Mr Wetang’ula.
“This is to notify you that the commission will consider your submissions and any other highlights thereon from yourselves on Tuesday January 12, 2016.
“Hearing will take place at the Milimani Law Court Nairobi from 9am,” IEBC letter to Mr Wetang’ula’s lawyer, Siaya Senator James Orengo reads.
The plan is to hold the hearings for a day, following an agreement between Wetang’ula’s lawyers and IEBC.
Thereafter, the committee will have time to deliberate and come up with a decision which will be pronounced on January 20.
The special committee is chaired by Commissioner Thomas Letangule.
The members are IEBC vice-chairman Lillian Mahiri-Zaja and Commissioner Mohammed Alawi.
The committee’s secretary is Chrispine Owiye, who is the IEBC’s investigations and prosecutions manager. Moses Kipkogei is assisting counsel.
“We are very much prepared and looking forward to concluding this matter.
"The lawyers for Senator Wetang’ula have also put in their submissions and we have also invited the Director of Public Prosecutions (Keriako Tobiko) to appear as a friend of the committee,” said Mr Wetang’ula.
Lawyers for Mr Wetang’ula made their written submissions on December 23, 2015.
According to Mr Orengo, IEBC has assured them that the matter is a notice to show cause, meaning the committee will not be re-opening the court case.
“The parties are only Senator Wetang’ula and his lawyers to show cause to the panel set up by IEBC.
“It is not a new trial and we don’t expect the panel to open it up to other people to make submissions,” said Mr Orengo.
Privately, IEBC officials also said as much. “We don’t want to open a Pandora’s Box,” said an official who requested anonymity so as not to appear to prejudice the process.
The Supreme Court found Mr Wetang’ula guilty of voter bribery in a judgement that would require the IEBC to remove his name from the register of voters, a move that would lock the Cord co-principal from the 2017 General Election.
Senate Speaker Ekwe Ethuro in October published the judgment in the Kenya Gazette paving the way for the commission to “consider the report and delete from the register of voters” Mr Wetang’ula, in accordance with the Elections Act.
For IEBC, the case presents a major headache. First, the commission had rejected the irregularity claims during the election petition brought by former minister Musikari Kombo, insisting that the Bungoma senator’s 2013 senate seat win was free, fair and transparent. IEBC rejected Mr Kombo’s claims of voter bribery.
How they can abandon that position and turn around to say something contrary to what they told the courts is something that will be keenly watched.
The case presents a potential political minefield for the commission whose decision, whichever way it rules, might be seen as serving partisan interests between Jubilee and Cord coalitions.
“This is one of the most complex … and very sensitive matter for the IEBC. It puts the commission right between Jubilee and Cord supporters.
“Yet the commission has to make a finding,” a senior researcher on governance at the Institute for Security Studies (ISS), Peter Aling’o, said.
A decision that does not favour Mr Wetang’ula will play into the Cord’s narrative that IEBC is pandering to the whims of the powerful people in Jubilee and further diminish the confidence levels it currently enjoys.
“IEBC is working under duress,” said Kiminini MP Chris Wamalwa and Cord’s Deputy Chief Whip.
He says that any unwise decision they make will undoubtedly attract consequences.
According to Mr Aling’o, the Supreme Court should have pronounced the punishment at the time it made the bribery finding but avoided that perhaps because of the political consequences the case has.
“If IEBC were to go for strict search for justice, then Wetang’ula would be guilty given that the Supreme Court had already made a finding. But now it is the time for IEBC to look at the bigger political picture which some in Jubilee may also interpret as a weakness on the part of IEBC,” he added.
For Mr Orengo, his client’s argument against deleting his name from the register of voters are “simple and are founded in law.”
According to him, section 87 (3) of the Elections Act, which the IEBC is using, provides that the offender must first be disqualified as a voter before his name can be removed from the register of voters.
“Article 83(1) of the Constitution states that a person qualifies for registration as voter at elections or referenda if the person is an adult citizen, is not declared to be of unsound mind and has not been convicted of an election offence during the preceding five years. The key word here is being convicted, which Mr Wetang’ula isn’t,” said Mr Orengo.
“Our contention is that unless there is a conviction his name cannot be removed from the voters’ register. He also cannot be punished for an election that was not contested,” he said, referring to Mr Wetang’ula win in the by-election.
According to Mr Letangule, the committee will be guided by the law.
“We have received legal opinion from the Attorney General (Prof Githu Muigai) and other external lawyers. We are going into this matter with an open mind and unbiased as much possible,” he said.
To emphasize the committee’s impartiality, secretary Mr Owiye added said everything will be done in the open. “The pronouncement of our decision will also be made in the open,” he said.
For Jubilee Alliance, while they don’t want to admit publicly, they will be following the case keenly given the political consequences it portends for them.
A decision that does not favour Mr Wetang’ula, one of them said, would be used by Cord to mobilise the western vote.
“All our efforts at making inroads in western will come to nought because Cord will play the victim and appeal to the emotions of the people,” said a Jubilee insider.
Kiminini’s Mr Wamalwa hinted as much, telling Sunday Nation that western voters will be watching IEBC’s every step.
“All the Mulembe Nation will be represented at the Milimani Court. We are with Senator Wetang’ula in this and Jubilee, which has been pushing for this case should better wake up and foresee the consequences of removing his name from the voters’ roll,” said Mr Wamalwa.
But National Assembly Majority Leader Aden Duale denied that Jubilee has an interest in the matter and instead asked IEBC to uphold the Constitution and follow the due process of the law.
“As my friend, I would not wish to see him lose this battle. But we in Jubilee believe in the due process of the law and hope IEBC will uphold the Constitution,” said Mr Duale, adding that Jubilee has nothing to lose or gain from the case.
“Our campaigns in western region depend on our track record. It is not based on falsehoods and propaganda. I believe the people of western are able to tell the truth from the lies,” he said.