Wetang’ula in a fix over voter bribery

Bungoma Senator Moses Wetang’ula’s political career is hanging in the balance after Senate Speaker Ekwee Ethuro gazetted court findings that he bribed voters.

The move opens the way for the Independent Electoral and Boundaries Commission (IEBC) to deregister him as a voter, effectively knocking him out of elective politics in 2017.

The law stipulates that anyone who is disqualified as a voter due to an election offence cannot run for office for five years.

Mr Ethuro gazetted the report as required by law on Friday, effectively pushing the ball in the IEBC court to decide on the next course of action.

“On March 17, 2015, the Supreme Court of Kenya petition No. 12 of 2014, Moses Masika Wetang’ula and Musikari Nazi Kombo and two others found that Moses Masika Wetang’ula, Senator of the County of Bungoma committed the election offence of bribery during the March 2013 General Election,” read the gazette notice.

“The court made its finding after considering the record of fact before it and the findings of the High Court and Court of Appeal,” it went on.

TREATMENT OF VOTERS

In March, the Supreme Court upheld earlier verdicts of the High Court and Court of Appeal that found Mr Wetang’ula guilty of electoral offences of treatment of voters and bribery during the 2013 campaigns.

Supreme Court judges Willy Mutunga (Chief Justice), Kalpana Rawal (Deputy CJ), Philip Tunoi, Jackton Ojwang’ and Mohamed Ibrahim, however, reversed a decision by the Court of Appeal, which had disqualified the Senator from vying in the 2017 General Election.

The Bench instead directed that the Registrar of Supreme Court should serve a report of the commission of election offence of bribery to the Director of Public Prosecution, IEBC and Speaker of the Senate.

Legal experts were yesterday analysing whether Mr Wetang’ula would lose his seat if IEBC strikes his name from the voters’ register and the procedure the commission should use.

Section 87 (3) of the Election Act says the IEBC should “consider and deregister” any person convicted of election offences once it has been gazetted by the Speaker of Parliament.

“The relevant Speaker shall publish a report made under this section in the gazette, and the commission shall consider the report and delete from the register of voters the name of a person, who is disqualified from being registered in that register of voters,” says the Act.

STUDY THE REPORT

Reached for comment, IEBC, which has already been warned by Cord against “touching Wetang’ula”, was non-committal on their next cause of action.

“The commission will study the report and respond at appropriate time,” Tabitha Mutemi, the IEBC communications manager told the Saturday Nation.

Cord leaders have accused Jubilee government of using IEBC to intimidate the coalition. They have dared the commission to deregister Mr Wetang’ula.

Mr Kamotho Waiganjo, a commissioner at the Commission for the Implementation of the Constitution, said before making a decision, the IEBC will check whether or not bribery and treatment of voters is listed as one of the offences that would warrant a person to be struck off the register.

“However, once removed, one doesn’t lose their seat but they do not qualify to vie in the next election,” opined Mr Waiganjo.

Yesterday, Mr Wetang’ula, the Ford Kenya party leader, was unavailable for comment as he is out of the country. But in an interview with a TV station last Wednesday, the Bungoma senator put on a brave face saying the gazettement was a procedural matter with no major impact.

“I don’t think my political future is hanging in any balance for the simple reason that what you’re seeing in the media is a misquotation, misinterpretation and misreporting of what the Supreme Court said,” he said.

“The Supreme Court actually did say that the finding of Court Appeal in Kisumu purporting to be disqualifying me from any election is quashed and that is very clear. Then they said that their findings on the alleged bribery be forwarded to the Speaker as is required by the law and the DPP, which they have done. Then the Speaker is obligated by the law to gazette the findings. It doesn’t mean anything, it’s just procedural.”

CRIMINAL INQUIRY

Mr Wetang’ula added after getting the report from the court, DPP instructed the Director of Criminal Investigations Mr Ndegwa Muhoro to carry out a criminal inquiry into the matter.

“The DCI carried (out) investigations and released a report. But he had found me blameless ... there was no evidence and they opined that the file be closed. Thereafter the DPP ordered the file to be closed,” he said.

Yesterday, Mr Wetang’ula’s ally Mr Eseli Simiyu, also Ford Kenya secretary-general, however, maintained that they do not expect the Bungoma senator to be deregistered since the law says the commission “consider the report” before acting.

“The Supreme Court sent the same report to the DPP who returned a ‘not guilty’ verdict. It was not in vain that the court sent the report to the DPP,” he opined. “Therefore, in their consideration, the IEBC should factor in the DPP’s input and, therefore, we don’t expect a deregistration unless they have other ulterior motives.”

Mr Eseli called on the electoral body to carry out the process “in the open and not in a boardroom”.

“If IEBC was to deregister a person, the law would have expressly said so not insisting on the commission “shall consider”. Someone is misusing the judicial process,” he said.

“The whole Wetang’ula problem stems from his disagreement with Mr Kombo and New Ford Kenya, which is part of Jubilee. If they are doing this to capture Western region let them forget it. They’ll actually lose it. We will wait for the IEBC to act, if they deregister him, we’ll definitely go to court.”

Nairobi lawyer Charles Kanjama, who acted for Mr Kombo in the petition, said the reality of the cumulative findings of the High Court, Court of Appeal and Supreme Court means Mr Wetang’ula’s chances of vying in the next election “have greatly plummeted”.

“I don’t expect the IEBC to clear him in the next election,” he said, adding that in future, a person could go to court to have him barred even if IEBC refuses to act now.

Section 106 (3) of the Elections Act says that “a person who is convicted of an offence under this Act shall not be eligible for election or nomination in an election under this Act for a period of five years following the date of conviction”.

Should this clause be invoked, Mr Wetang’ula would have to sit out the 2017 election but would be eligible to vie in 2022.

BALANCE EQUATION

Such a scenario would throw the Opposition in a spin as they would have to replace him to balance the equation. Mr Wetang’ula is a Cord co-principal together with former Prime Minister Raila Odinga and former Vice President Kalonzo Musyoka.

He is also the Minority Leader in the Senate. He is seen as the face of Western bloc in Cord, although in his own right, Mr Odinga has considerable clout in the region.

“The issue on whether Wetang’ula will lose his seat once deregistered is still a grey area because the courts have not pronounced themselves. I expect though that a person may go to court if IEBC clears him for the next election to have him barred,” said Mr Kanjama.

A week ago, ODM chairman John Mbadi dared the government to “touch Wetang’ula”, warning that as a co-principal, they would resist any attempts to blackmail him. “Anyone who thinks he can touch Wetang’ula must know he is touching the heart of Cord,” vowed Mr Mbadi.

“State agencies have been hard at work leaking to the media documents they know cannot otherwise stand a chance before any functional court,” added Kakamega Senator Boni Khalwale.

“This is not the law at work. It is naked and raw politics at play.”