There are many reasons why people may want to recall a member of parliament in Kenya. The Kenyan Constitution recognizes this fact as stipulated in Article 104. This law gives Kenyans the right to recall a Member of Parliament before their term ends. The Senators, MPs and Women Representatives are the members that Kenyans can recall.
Recall for nominated MPs in the Senate and the National Assembly is subject to the political parties that nominated them.
Sections 45 to 48 of the Elections Act provide for the grounds and procedure to recall a member of parliament. The need to recall a member of parliament often arises from a disatisfied electorate. Kenyans have experienced poor leadership by their past and present MPs and hence the need for the right to recall them.
Grounds to recall a Member of Parliament in Kenya
For the Senator and the Women Representative, the electorate at the county level may initiate the recall. For an MP, the electorate at the constituency level can initiate the recall.
People may recall a member of parliament if:
- after a due process of the law, the MP is found to have violated Chapter 6 of the Constitution on Leadership and Integrity.
- after the due process of the law, the MP is found to have mismanaged public resources.
- an MP is convicted of an electoral offence under the Elections Act (Part VI).
Nevertheless, the recall can only begin if a judgement or finding of the High Court confirms the grounds above.
To recall a member of parliament, you have to wait for two years after the election and not later than a year to the next general elections.
You cannot file a recall petition for a member of parliament more than once within their five year term.
A person who contested in an election and lost cannot recall a member of parliament, whether directly or indirectly.
Petition to recall a Member of Parliament in Kenya
The recall should be in form of a petition and the petitioner should file it with IEBC. The petition should be in writing. The petitioner who signs it shoulld be a voter in the constituency or county for which they seek the recall. The petitioner should also have registered to vote in the election under which they seek the recall.
An order from the High Court confirming the grounds for recall should accompany the petition.
The petition should;
- specify the grounds for the recall.
- contain a list of names of voters in the constituency or county. The names should represent at least thirty percent of the registered voters; and
- be accompanied by the fee prescribed for an election petition.
The list of names should contain the names, address, voter card number, national identity card or passport number and signature of the voters supporting the petition. The list should also contain names of at least 15% of the voters in more than half of the wards in the county or the constituency, as appropriate.
The voters supporting a petition to recall a Member of Parliament should represent the diversity of the people in the county or the constituency, where possible. This diversity includes ethnic, cultural and religious diversity.
The petitioner should then submit to the IEBC the list of names collected within thirty days after filing the petition. The Commission will then verify the list of names within a period of thirty days after receiving the list.
If satisfied that the petitioner meets all the requirements, IEBC shall within fifteen days after the verification, issue a notice of the recall to the Speaker of the relevant House.
The Commission should conduct a recall election for the relevant constituency or county within ninety days of the publication of the referendum question. The question should be in a manner that requires a “yes” or “no” answer. People make a determination in the recall election based on the question. The Commission should assign a symbol for each answer to the recall question.
Voting to recall a Member of Parliament in a recall election should be by secret ballot. Determination for the recall election is by a simple majority. That is, more than half of the voters voting in the recall election.
If the recall election results in the removal of a Member of Parliament, IEBC should conduct a by-election in the affected constituency or county.
An MP who loses their seat through recall elections is eligible to run in the by-election.
A recall election shall be valid if the number of voters who concur in the recall election is at least 50% of the total number of registered voters in the affected county or constituency.
Why recalling an MP is hard
When you look at the procedure to recall a Member of Parliament in Kenya, you find it difficult. It is hard to recall an MP because the threshold is very high. Even if one was to follow the procedure, it would take more than the stipulated time.
Yours truly think that the MPs made these amendments to the Elections Act out of selfishness and self-preservation. We have known them to be greedy and also to lack insight when it comes to issues touching on them.
Nevertheless, two civil society organizations filed a petition in court to challenge the recall law. The High Court directed that the case be heard by a three-judge bench. All we can do now is await the interpretation of the Judiciary on the way forward.