The Court of Appeal has found six ODM politicians guilty of committing electoral offences during last year’s campaigns but did not prescribe any disciplinary action against them.
The finding was a confirmation of a High Court decision of August 23 last year.
The Appeal court, sitting in Kisumu, said it didn’t find a reason to interfere with what the initial court found about Siaya Governor Cornel Rasanga, Senator James Orengo, Women Representative Christine Ombaka and MPs Oburu Oginga, Jakoyo Midiwo and David Ochieng regarding various electoral offences they committed against the then Siaya governorship aspirant William Oduol.
The court heard that with the exception of Mr Midiwo, the politicians were part of an “ODM brigade” that invaded a rally being addressed at Luthehe market by Mr Oduol and started addressing the attendants from another side.
One witness told the High Court that the situation would have degenerated into chaos had Mr Oduol not stopped his rally.
Invasion of another person’s rally is an offence under Section 67 of the Elections Act.
Mr Midiwo was found to have breached the same section by repeatedly referring to Mr Oduol as a murderer who had shot his wife. He did so in various rallies during the campaign period.
However, the court said those were offences in the context of election malpractices and did not need the leaders to be held criminally liable.
“Clearly, the evidence …demonstrated that the malpractices were proved well beyond a balance of probabilities. That is to say that they fell just short of criminal culpability,” said Justices Patrick Kiage, Agnes Murgor and Sankale ole Kantai in their yesterday’s judgment.
They added: “Election offences were perpetrated against Mr Oduol, which were proved to the requisite standard in an election petition.”
This was unlike a judgment delivered by the same court last week in which the court confirmed charges of bribery against Bungoma Senator Moses Wetang’ula and recommended that the High Court should report such leaders directly so they can be barred from contesting in subsequent elections.
The Independent Electoral and Boundaries Commission (IEBC) and Mr Oduol had asked the court to negate the findings of the High Court that the ODM leaders committed an offence.
The two argued that it wasn’t proper for High Court judge Aggrey Muchelule to find the leaders guilty of election offences while they had not been called to give their side of the story in court.
But the three-judge bench endorsed Justice Muchelule’s judgment fully, saying Mr Rasanga had all the opportunity to call the leaders to testify but failed to do so.
“Clearly, the petition provided the appellant with adequate notice that evidence was to be called against these personalities,” the bench said.
The judges further directed that Mr Rasanga caters for costs that Mr Oduol incurred in both courts. They directed the respective registrars to calculate the costs.