NAIROBI: Senate Speaker Ekwee Ethuro Friday threw fireworks into the political terrain when he gazetted a ruling of the Supreme Court indicting Opposition luminary Moses Wetang’ula for electoral offences.
The administrative decision has the potential of ruining the Opposition’s strategy in 2017 if the Independent Electoral and Boundaries Commission (IEBC) decides to strike the Bungoma Senator off the voters’ roll.
The Coalition for Reform and Democracy (CORD) now has to pray that the IEBC, which it has consistently accused of mishandling the 2013 elections and lacking credibility to hold the next polls, decides to hound out of Parliament its only bigwig in the House. The development equally presents a tight situation for the commission because it would want to prove its independence but at the same time not be seen as bowing to either blackmail by the Opposition or pressure from the Executive.
In the legal notice published in yesterday’s edition of the Kenya Gazette, the Senate Speaker has attached the Supreme Court’s finding that Wetang’ula committed an election offence of “bribery” in the March 4, 2013.
‘Political shenanigans’
“The court made this finding after considering the record of fact before it and the findings of the High Court and the Court of Appeal,” read the notice that was attached to Ethuro’s notice.
But Wetang’ula’s allies blamed the new development on the ruling Jubilee administration. They complained that the whole ruling indicting one of their party’s top bosses was part of “political shenanigans” to “weaken” the Opposition ahead of the next polls, and more so, at a time when the government is battling economic turmoil and dissatisfied teachers.
MPs Eseli Simiyu (Tongaren), Chris Wamalwa (Kiminini), Ababu Namwamba (Budalang’i) and the Senate’s CORD brigade of Dr Boni Khalwale (Kakamega), Mutula Kilonzo Jr (Makueni) and Hassan Omar (Mombasa) said the Speaker’s move had opened floodgates to litigation on “how a civil case can make a determination over a criminal matter”.
Namwamba read “malice” in the way the issue has been handled.
“There’s definitely a lot of malice in this matter. Whereas I respect the rule of law, on this one, it raises a lot of suspicion,” Namwamba told The Standard on Saturday.
Eseli and Wamalwa, who are Wetang’ula’s close lieutenants in Ford Kenya, say they will not recognise the second investigation of the Directorate of Criminal Investigations which asked the Director of Public Prosecutions Keriako Tobiko to charge Wetang’ula for electoral offences.
“Evidence so far availed is sufficient to hold Wetang’ula criminally responsible in respect of offences of bribery of voters and treating of voters contrary to Section 62 and 64 of the Elections Act respectively. Please get sight of a provisional charge sheet filed in sub-file G for ease of reference,” John Kariuki of the DCI wrote in the July 17, 2015 letter to the DPP. But to Wetang’ula’s allies, that second investigation was a “political hatchet-job” because the “main people did not record the statements”.
“Why didn’t they take fresh statements from Wetang’ula, Kanduyi MP (Wafula) Wamunyinyi and Alfred Khang’ati (former MP)... they never recorded statements,” said Wamalwa.
Eseli said failure by the police to re-interrogate the key people mentioned regarding the offence was “a grave error”.
“This is Jubilee doing its political shenanigans ahead of 2017. We can see it and we will not accept it,” said Eseli.
Eseli, Khalwale and Wamalwa said they had seen the DPP on TV exonerating Wetang’ula and there was no reason for the second investigation.
“The DPP ordered the DCI to close the investigation file and we have TV footage on it,” said Khalwale. Contacted by The Standard on Saturday on phone, Ethuro, who is in Geneva, Switzerland, said his actions were in accordance with the law. “My act is by operation of the law. It’s now up to the IEBC to do its work,” said the Speaker.
Section 87(3) of the Elections Act says that once the Speaker has gazetted a ruling, then “the commission shall consider the report and delete from the register of voters, the name of the person who is disqualified from being registered in that register of voters.”
Suspect move
According to lawyer Edwin Sifuna, should the IEBC decide to delete Wetang’ula’s name, he will not be eligible to vie in the next polls. One has to be a registered voter to qualify as a candidate.
“Without Wetang’ula in 2017, CORD will need to find a pointman in Bungoma, because he will not be as effective as someone who is eligible for re-election” said Sifuna, also a political commentator.
Wamalwa and Mutula Jr said there was already a battery of lawyers seeking a declaration from the Supreme Court.
“We have put up a team of lawyers on the matter,” said Mutula Jnr.
The legislators argued that the move is suspect and aimed at silencing Wetang’ula against criticising the government.
Efforts to reach Wetang’ula, who is out of the country, on phone proved futile.
The Standard on Saturday has also discovered that the Speaker has received a petition, questioning why he had not acted on the court’s verdict. But some legislators who confided in The Standard on Saturday opposed the move, including those from Jubilee, saying it will open a floodgate to target winners by the losers and that the threshold is very high.
