, NAIROBI, Kenya, Jan 12 – Bungoma Senator Moses Wetangula says the Independent Electoral and Boundaries Commission cannot deregister him as a voter despite the High Court, Court of Appeal and Supreme Court all finding that he committed an electoral offence by bribing voters in the 2013 General Election.
Appearing before the commission on Tuesday, Wetangula argued through Senior Counsel James Orengo that the he can only be deregistered as a voter in the event that he is convicted of the offence.
“The law is very clear, one can only be struck out of the list of registered voters or removed from Parliament if they’re convicted of an offence not when it has been established in an electoral petition that an offence has been committed,” Orengo told the commission.
He said if that were not the case then Section 87 of the Elections Act would not require the Supreme Court to forward its findings to the Director of Public Prosecutions (DPP) for further action.
And a conviction, Orengo said, could only be secured after the DPP preferred charges to which Wetangula would plead and be heard.
“None of which has happened in this case,” Orengo said.
The Director of Public Prosecutions Keriako Tobiko was notably absent during Tuesday’s proceedings having declined the commission’s invitation.
In response to the commission’s invitation he wrote, “I have reflected on your revised request and still hold a firm view that it would be inappropriate for me to appear before the committee and offer any opinion in regard to the matter as requested.”
A decision which Orengo described as “wise” and in informed by the independence conferred onto the DPP’s office. “He does not act on the direction of the Supreme Court. The decision to prosecute must be based on facts and evidence available.”
He therefore argued that while Section 87 of the Elections Act requires the commission to “consider” the Supreme Court’s finding of malpractice, it was independent to make its on findings in law.
A concept which the commission represented by vice-chair Lilian Mahiri-Zaja, Thomas Letangule and Mohamed Alawi found difficult to wrap their heads around. “If that were the case then there really wouldn’t be anything to consider, would there?” Letangule posed.
Orengo however maintained that the “best” the commission could do is defer the matter until such a time as Wetangula faced criminal prosecution.