Reports on Wetang’ula’s candidacy in 2017 misleading

NAIROBI: There is obvious journalistic laziness in reporting on the fate awaiting Bungoma Senator Moses Wetang’ula. Why don’t we let the Constitution tell us whether an MP loses his seat once his name is struck off the roll of voters?

Article 103 sets out eight ways the office of MP can be vacated. The provisions pertinent in this instance, however, are 103 (C) where one loses their seat if found to have breached Chapter Six of the Constitution and 103 (1)(g) if one becomes disqualified for election under Article 99 (2) (d) to (h).

The requirement to be a registered voter is not one of the requirements covered by Article 99 (2) (d) to (h) so that being struck off the list of voters does not automatically lead one to lose his seat. Article 99 (2)(g) and (h) would come into play if Wetang’ula were actually convicted and sentenced for the offence of bribery or found to have contravened Chapter 6.

Most importantly under Article 99 (3) even if convicted for the offence of bribery or contravention of Chapter 6, he still would not lose his seat until all possible appeals have been exhausted and that could take years. The question then becomes whether by the decision of the High Court in the Election Challenge by Musikari Kombo, as upheld by the Supreme Court in Petition No. 12 of 2014, Wetang’ula was convicted of an electoral offence.

The answer once again is to be found in the Judgment of the Supreme Court and it is a resounding No. The Supreme Court, on the question whether the proceedings of an Election Court are criminal in nature, found as follows; “...the proceedings before an election Court are neither criminal nor civil.

While the election Court has the competence to look into offences that are criminal in nature, such as bribery and treating of voters, its inquiries on the relevant instances of election offence do not constitute a criminal trial, with its dedicated procedures and safeguards”.

As the judges rightly observed, this is the reason why Section 87 (1) requires the election Court to forward its findings to the DPP to move to court accordingly where criminal acts are disclosed in the cause of an Election Petition. The Supreme Court affirmed the reasoning of Justice Gikonyo in Moses Wanjala Lukoye v Benard Alfred Wekesa Sambu and three others where he stated; “More trouble is found in [the] imagination that the words in Section 87(1) of the Elections Act assign the decision of the election Court the vitality of a finding of guilty, as in a criminal trial. If that thinking prevails, the requirement to make a report to the DPP does not make any sense in law.”

The conclusion therefore was that an Election Court is but a source of relevant information for a possible criminal trial that would bring into play Articles 99(2) (g) and (h) “but whether or not such trial takes place, falls to the prosecutorial discretion of the Director of Public Prosecutions.”

That brings me finally to the DPP and remoteness of the possibility of him deciding to prosecute Wetang’ula. Following the High Court ruling annulling Wetang’ula’s election, the Court notified the DPP to take further action. The DPP duly directed the Director of Criminal Investigations to investigate the allegations and in a report to the DPP the DCI made two important findings.

Firstly Wetang’ula’s accusers could not even agree on how the alleged bribe was given leading to the question how three different people present at the same meeting could give contradictory accounts of what happened. Secondly, why did the bishops wait for months before making the incident known?

The DCI recommended that the evidence adduced was therefore insufficient. From a legal standpoint therefore Wetang’ula is covered for now. It’s only the politics he must deal with.