Lawyers split on Waluke’s eligibility for public office
Opinion is divided among lawyers and the Independent Electoral and Boundaries Commission (IEBC) on whether Sirisia MP John Waluke is eligible to defend his parliamentary seat since he is a convict.
While sources at IEBC indicate the agency is mulling whether to bar Waluke from defending his seat in the August election, some lawyers believe by the very fact that his appeal challenging his conviction is active in court, he is eligible to hold public office.
The legal fraternity is divided on whether a convicted individual waiting for the court to determine his appeal against the conviction should be treated in the same manner as a suspect facing criminal charges and is yet to be found guilty.
The debate on Waluke’s issue is said to have been ignited by Anti-Corruption Court judge Esther Maina’s decision last year to bar him from travelling on grounds he is a convict and could not be allowed to leave the country until his appeal against the jail sentence is determined.
The MP was last year jailed for 67 years after he was found guilty of defrauding the National Cereals and Produce Board but appealed against the sentence.
“The court cannot release his passport to travel outside the country when he is already a convict and is only out of prison because of the bond he was given pending determination of his appeal,” ruled Maina.
Justice Maina ruled that since the MP had already been found guilty, he cannot be treated as an accused person who is still presumed to be innocent and can be allowed to travel outside the country.
The MP, and his co-accused Grace Wakhungu, who are directors of Erad Supplies Ltd, were in 2020 jailed for a cumulative period of 67 years and fined close to Sh1 billion each by Anti-Corruption magistrate Elizabeth Juma for defrauding NCPB of Sh297 million in a maize importation scandal. Juma then ordered that her verdict be handed to National Assembly Speaker Justin Muturi, who would in turn, declare the Sirisia parliamentary seat vacant.
But Waluke and Wakhungu received a reprieve when Justice John Onyiego released them on a Sh10 million and Sh20 million cash bail respectively pending the determination of the appeal.
The case has now become the subject of debate within the legal fraternity.
“It defeats the very basic fabric of Chapter Six of the Constitution on Integrity. This is a clear case where an individual has been found guilty and convicted. What other evidence would you be looking for in order to consider him a nullity for public office?” said a senior officer at the Directorate of Criminal Investigations who declined to be named due to the sensitivity of the matter.
Former Law Society of Kenya chief executive Apollo Mboya blames the whole confusion on failure by courts, the Ethics and Anti-corruption Commission (EACC) and IEBC to subject the judgement to judicial interpretation.
“EACC has failed in its core mandate to implement Chapter Six of the Constitution. On the Waluke issue, both EACC and IEBC ought to have moved to court seeking for proper interpretation to determine whether the release on bail meant according the convict’s other freedoms,” Mboya told People Daily.
He also faults the courts for sitting on the fence over the interpretation of Chapter Six since 2013 when President Uhuru Kenyatta and his deputy William Ruto were faced with charges of crimes against humanity at the International Criminal Court (ICC).
“It is an issue that has never been adequately addressed and the sooner it is sorted out, the better,” Mboya says.
But Gad Awuonda, one of the drafters in the Committee of Experts that fine-tuned the 2010 Constitution, says nothing stops Waluke from running for a political office.
“Had the court allowed his appeal, but declined to release him like in the case of former Nairobi Town Clerk John Gakuo, that would have been a different matter. But since he was released and the appeal is ongoing, he is as free as any other person,” says Awuonda.
Awuonda argues that Waluke remains innocent at the moment as long as he has not exhausted all the available appeal mechanisms.
