The August 9 General Election is fast approaching. As politicians get busier crisscrossing the various terrains searching for votes, some are bound to commit electoral offences.
The election-related offences include voter bribery, hate speech, violence, offensive conduct that might cause a breach of peace, wrongfully inducing voters to boycott the elections, false claims by persons employed in the Public Service, abuse of office, unauthorised administration of oaths and even murder.
Although Kenyans encounter some of these offences daily, they tend to be more prevalent during the election period.
Both the Independent Review Commission (IREC), popularly known for its Kriegler Report, which was formed after the 2007-08 post-election violence, and the Waki Report, traced misuse of language during the campaigns and negative ethnicity, as some of the reasons that led to the violence.
This time around, Big Brother is watching and all institutions mandated with ensuring that the forthcoming elections are held in a peaceful environment are on alert for potential trouble.
The Election Offences Act was enacted to guard against poll offences and empowers the Director of Public Prosecutions (DPP) to order investigations and prosecute such offences.
In the past, the prosecution has lost cases in which politicians and, in some instances, voters had been accused of election offences.
There have been many cases of voter bribery and mass transfer of voters, while others continue campaigning well beyond the Independent Electoral and Boundaries Commission deadline. Getting a conviction, however, has been difficult.
Recently, a Nakuru court rejected charges against Kapseret MP Oscar Sudi because the prosecution failed to show that he was in a public place and that his utterances were likely to cause a breach of peace.
Mr Sudi had been charged with two counts of hate speech and offensive conduct but he was set free because the prosecution did not adduce evidence to prove that the alleged hateful message stirred ethnic hatred.
The court noted that there were no witnesses who stated the effect of those words on them or that the utterances were likely to resort to violence.
During the 2013 election contest between current Makadara MP George Aladwa and Benson Mutura, a witness — Daniel Nyakundi — admitted in a petition Aladwa filed that he had been bribed.
Although the witness said many others were influenced and voted more than once, presiding judge Richard Mwongo ruled that the admission was insufficient to prove an offence.
The judge, however, directed the arrest of Mr Nyakundi, who was jailed for two years, after pleading guilty to bribery.
In the 2017 polls, in Wajir, many people were assisted to vote due to the high incidence of illiteracy, especially in Wajir East Constituency. But in doing so, the officials were accused of influencing the voters, a matter that was raised in court as it constitutes an election offence.
Although the allegation was refuted, the trial court found that the presiding officers had not complied with the procedure for assisting voters, which required that a note be made in the voter register next to the names of the persons assisted indicating the fact of the assistance and the reasons.
The court, however, did not make any specific finding or recommendation of alleged offences nor was there an evaluation of whether the commission of offences was proved to the required standard.
And without a recommendation to the DPP, as required, it was unclear what action was to be taken against the presiding officers who were indicted.
In yet another election, in the Mombasa governor race, the court noted some polling clerks had signed Forms 35A purporting to be ODM and Jubilee Party agents, which they attributed to fatigue.
Since there was no justification for signing Form 35A under the guise of being political party agents, the court recommended to the DPP to institute investigations and determine whether the polling clerks should be charged with an electoral offence.
Now, to ensure that the failures experienced in the past are not repeated, DPP Noordin Haji recently launched a Compendium on Electoral Justice.
Mr Haji said the development of the outline was informed by an analysis of the cases handled by his office, arising from the previous elections, which identified the urgent need for a paradigm shift in the prosecution of related offences.
“The compendium is, therefore, intended to address the identified gaps and ensure consistency, accountability, transparency and integrity in the investigation and prosecution of electoral and related offences,” Mr Haji said.
He noted that election offences can subvert the democratic will of the people and constitute a serious security threat to the people’s rights and values such as democracy.
“Safeguarding such rights and combating election offences requires not only trained and well-organised prosecutors but also prosecutors who are supported and protected by their governments. This is also possible when there are policies and guidelines in place to guide prosecutors,” he said.
The role of the DPP under the Election Offences Act is to direct investigations on the offences, commence prosecution within 12 months of the election, and compile reports of cases relating to infringements of the law countrywide.
The reports provided will enable the National Council for the Administration of Justice (NCAJ) to constitute specially gazetted magistrates for election offences.
The DPP said his office has already established the Hate Speech and Election Justice Division, reviewed the template charge sheets for poll offences, developed a checklist on the admissibility of electronic evidence and reviewed the reporting template tool for election and related offences, for capturing data.
Mr Haji said regional coordinators have been identified as focal point prosecutors, who will be responsible for compiling reports and data of election offences and forwarding them to the DPP through the Hate Speech and Election Justice Division.
“At the ODPP, we are committed to ensuring that the perpetrators of electoral offences are effectively prosecuted and punished,” he warned.
On her part, Chief Justice Martha Koome said the fair, efficient, timely, and effective settlement of electoral disputes is a crucial component of having a successful electoral process.
Just like the ODPP, the Chief Justice said the Judiciary is also enhancing its elections preparedness.
“We have put in place the Judiciary Committee on Elections that has developed and is implementing a comprehensive election preparedness work plan to ensure that the institution is positioned to discharge its mandate optimally. We have already embarked on training of judges and judicial officers on electoral offences and connected matters,” she said.
The CJ said she has gazetted 120 magistrates to serve as special magistrates to hear and determine matters relating to the Election Offences Act. Under the Act, Election Offences courts are mandated to hold sittings on a day to day basis until the completion of the trial.
In February, Justice Koome directed the magistrates handling hate speech matters under the National Cohesion and Integration Act to finalise all pending cases within four months.
The Chief Justice also said the Judiciary is working on a plan to implement special hate speech courts in the hot spot areas to ensure expeditious resolution of such matters.
“The confidence in our electoral justice system is key given that in its absence, the public might resort to extra-legal means of settling election and six election-related disputes,” she said.