In Kenya, the electorate holds the power to recall their elected Members of Parliament (MPs) before the end of their term. This right, as stipulated in Article 104 of the Kenyan Constitution, allows citizens to hold their representatives accountable when they feel that the MP has failed to meet their responsibilities. This article outlines the process, grounds, and legal framework surrounding the recall of an MP, offering citizens a clear understanding of how to exercise this constitutional right.
Who Can Be Recalled?
The members of Parliament eligible for recall include:
- Members of the Senate
- Members of the National Assembly
- County Women Representatives
Each county is treated as a single-member constituency for election purposes. The process to recall an MP is guided by Part IV of the Elections Act, which lays out the grounds and procedure for initiating a recall.
Grounds for Recalling a Member of Parliament
The grounds for recalling an MP were a topic of legal debate. In Constitutional Petition 209 of 2016, the High Court of Kenya declared certain grounds in Section 45(2) of the Elections Act unconstitutional, including provisions for recalling members of the County Assembly (MCAs). In response, the County Governments Act was amended in 2020 to reflect the Court’s ruling. However, Parliament did not extend similar amendments to the recall of MPs in the Elections Act.
Despite this, the Constitution ensures that a right cannot be denied or frustrated due to a lack of legislative clarity. Therefore, based on the Constitution and various court rulings, the following grounds for recalling an MP are applicable, as derived from the amended County Governments Act:
- Gross violation of the Constitution or any other law
- Incompetence
- Gross misconduct
- Conviction of an offense punishable by imprisonment for at least six months
These grounds offer the electorate a solid legal foundation to initiate the recall of an MP.
Timing for Initiating a Recall
The process for recalling an MP cannot be initiated immediately after their election. According to the law, a recall can only be initiated:
- Twenty-four months after the election of the MP
- Not later than twelve months before the next general election
This means that a recall petition can only be filed during the third and fourth year of an MP’s term in office. Furthermore, a recall petition can only be initiated once during the term of that member of Parliament.
How to Petition for a Recall
To begin the recall process, a voter must file a petition with the Independent Electoral and Boundaries Commission (IEBC). The petition must meet the following requirements:
- Grounds for Recall: The petition must clearly specify the grounds for recalling the MP, which should be one or more of the reasons outlined above.
- Support from Voters: The petition must include a list of names of voters from the constituency or county, representing at least thirty percent of registered voters.
- Diversity: The list of voters should reflect the diversity of the constituency, including ethnic, cultural, and religious diversity.
- Petition Fee: The petition must be accompanied by a fee equivalent to the court fees for an election petition.
The list of voters supporting the petition must also include details such as:
- Names
- Addresses
- Voter card numbers
- National identity card or passport numbers
- Signatures of the supporting voters
In addition, the petition must contain signatures from at least fifteen percent of voters in more than half of the wards in the constituency or county.
Submission and Verification
Once the petition is filed, the petitioner must submit the list of voters to the IEBC within thirty days. The Commission then verifies the list within another thirty days. If the requirements are met, the IEBC will issue a notice of recall to the Speaker of the relevant House of Parliament within fifteen days of verification.
Recall Elections
Once the recall petition is approved, the IEBC will conduct a recall election within ninety days. During this election, the electorate will answer a simple “yes” or “no” question regarding whether the MP should be recalled. The election is conducted by secret ballot, and the result is determined by a simple majority.
If the recall election results in the MP’s removal, the IEBC will conduct a by-election in the affected constituency or county. The recalled MP may contest in the by-election unless barred by law, such as in cases where the recall is due to a violation of Chapter Six of the Constitution, the Leadership and Integrity Act, or the Election Offences Act.
Final Thoughts
The power to recall a Member of Parliament is a key component of Kenya’s democratic system, ensuring that elected representatives remain accountable to the people. While the legal framework for recalling MPs has undergone challenges, the Constitution, coupled with court rulings and amendments to related legislation, provides a clear path for citizens to exercise this right. By understanding the process and grounds for recall, voters can take an active role in holding their representatives accountable, ensuring that the interests of the people are always prioritized in Parliament.
