, NAIROBI, Kenya, Dec 15 – An aspirant for the Nyando legislative seat in 2013 has applied to have the Supreme Court revisit its decision to reinstate Fred Outa as the area Member of Parliament.
Jared Okello has told the court that he is in possession of new evidence which warrants the case to be re-heard.
The Supreme Court reinstated Outa as Nyando MP last year after finding that it hadn’t been proved beyond a reasonable doubt that he used Constituency Development Funds (CDF) to exert influence over voters.
The Court of Appeal had nullified Outa’s election after being convinced that he had indeed abused his office to sway the vote in his favour.
Deputy Chief Justice Kalpana Rawal and Justices Njoki Ndung’u, Smokin Wanjala, Mohammed Ibrahim and Jackton Ojwang however ruled on July 3, 2014 that the Court of Appeal erred when it based its nullification on allegations of bribery and abuse of public resources.
The Supreme Court adjudged that the accusations, just as in a criminal case, needed to be proved beyond all reasonable doubt, “as in a criminal case the accused is innocent until proven guilty,” Rawal said.
Justice Ndung’u entered a concurring opinion but held that the Nyando Constituency Development Fund (CDF) Treasurer at the time immediately preceding the general election should be found individually liable for campaigning for Outa while in public office.
“He was nominated for the committee by Outa, he was the Orange Democratic Movement Chief Agent in Nyando and he described himself as Outa’s number 1 supporter,” Ndung’u argued.
The rest of the bench however found, in a decision read out by Ojwang, that CDF committee members did not qualify as public officers as they were not remunerated out of the Consolidated Fund.
They did however express strong opinion against the abuse of CDF funds around election time to undermine the democratic process by unduly influencing voters.
“Testimony given before the trial court shows that there were funds disbursed between February 18 and March 4. Funds for whom the financial controller is a self-confessed Outa supporter but the burden of proof that he was simply not carrying out his functions and was out to sway the vote in favour of Outa lay with the petitioner (Jared Okello),” Ojwang said.
They therefore called on the Legislature to put in place safeguards, as they have done with civil servants, to ensure voters are not unduly influenced and free to exercise their political will.
“Because except where expressly stated, the Constitution guarantees the right to participate in the political process as the Nyando CDF Treasurer did when he wore the hat of ODM Chief Agent in Nyando,” Ojwang said.
Outa expectedly lauded the Supreme Court decision to reinstate him, “as the right one.”