Lungalunga MP Khatib Mwashetani (centre), accompanied by Jomvu MP Badi
Twalib (right) leaves the Mombasa Law Court September 26, 2013. The
court nullified Mr Mwashetani's election citing poll irregularities.
LABAN WALLOGA
The High Court in Mombasa has nullified the
election of Lungalunga Member of Parliament Khatib Mwashetani and
ordered a fresh poll.
Khatib Mwashetani who won his first parliamentary term becomes the first legislator in the Coast region to be sent home.
On
Thursday, Justice Vincent Odunga said there was blatant breach of the
law during the electoral process, which compromised the outcome.
Two
petitions had been filed against Mr Mwashetani and the Independent
Electoral and Boundaries Commission (IEBC) by Messrs Gideon Mwangangi
and Hassan Charo.
The petitioners
had raised several issues among them bribery, where it was alleged that
the MP bribed voters through his Mwashetani Foundation by buying school
equipment like desks and sinking wells among others.
BRIBERY CLAIMS
But the judge noted that those who benefited from Mr Mwashetani’s acts of generosity could not be assumed to be voters.
Consequently,
he dismissed the bribery claims saying that the petitioners ought to
have proved the claims to enable the court make its determination.
"Suspicion
alone is not enough. Such claims must be detailed because once
established beyond any reasonable doubt, then it is enough proof for the
court to nullify an election but the respondents’ activities did not
amount to bribery,” he said.
However,
the court noted that the fact he issued cheques in his name and not
through his foundation may have influenced the voters to vote for him.
“The
respondent ought to have clearly demarcated his intentions as a
director of the Mwashetani Foundation and him as an individual. This
alone affected the voting as voters did not express their free will,” he
said.
The judge noted that there was evidence of numerous inconsistencies, omissions and alterations in the tallies.
ORDER RECOUNT
He further noted that the returning officer had ordered a recount and amended Form 36, which was not within his mandate.
“The
returning officer usurped his powers because he does not have authority
to order for a recount because only a court can order for it. He also
issued an amended form 36 which is against the regulations because he
was not allowed to do so at the comfort of his office,” Justice Odunga
said.
In addition, the judge said
there was evidence of incorrect figures being transmitted at the
tallying centre and that some diary pages were left blank.
Consequently,
he said that the entire process, from transportation of ballot boxes to
distribution to various polling stations to conduct of elections was
not free and fair.
“The manner in
which elections were conducted in Lungalunga constituency is a study of
how not to conduct elections in future,” he said.
He, however, declined to award costs to the petitioners.
"No person can gain from an unlawful process."
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