, NAIROBI, Kenya, July 3 – The Supreme Court on Thursday reinstated Fred Outa as Nyando Member of Parliament setting aside the Court of Appeal’s nullification of his election.
A five judge bench comprising Deputy Chief Justice Kalpana Rawal and Justices Njoki Ndungu, Smokin Wanjala, Mohammed Ibrahim and Jackton Ojwang found that the Court of Appeal erred when it based its nullification on allegations of bribery and abuse of public resources.
The Supreme Court bench 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, as can be expected, lauded the Supreme Court decision to reinstate him as the right one and said he could now return to serving the people of Nyando, “distraction free,” given the penultimate judgement on his election.
“This is history, the people of Nyando have never had the same MP for two terms running and unless they want to take me to the International Criminal Court, it should send chills to my opponents for 2017. I want to tell Kenyans that there are changes in the Judiciary,” he said, “and I want to go back to Parliament to support the reforms in Judiciary. The Nyando people I’ll roll down tomorrow to continue the projects that had stalled because of this court case. Outa tena (again)!”