Article 104 of the Kenyan Constitution grants voters the right to recall a Member of Parliament (MP) representing their constituency before the completion of their term. This process applies to:
- Members of the Senate
- Members of the National Assembly
- County Women Representatives
For electoral purposes, each county functions as a single-member constituency.
Eligibility for Recall
Nominated Members of Parliament can only be recalled by the political parties that nominated them. The procedure and grounds for recalling an MP are outlined in Part IV of the Elections Act.
Grounds for Recall
A High Court ruling in Constitutional Petition 209 of 2016 found certain provisions of Section 45(2) of the Elections Act unconstitutional. However, this does not nullify the electorate’s right to recall their representatives.
Kenyan law mandates that the failure of Parliament to legislate on a particular right should not impede its exercise. This means that the recall process remains valid under constitutional logic. The legal basis for recalling MPs aligns with the updated provisions for recalling Members of County Assemblies (MCAs) under the County Governments Act.
The grounds for recalling an MP include:
- Gross violation of the Constitution or any other law
- Incompetence
- Gross misconduct
- Conviction for an offense punishable by at least six months of imprisonment
A recall petition can only be initiated between the 24th and 48th month of an MP’s term, ensuring that a representative has served at least two years but has not entered the final year of their term. Furthermore, an MP can only be subjected to a recall once within their term.
Filing a Recall Petition
To initiate a recall, the petitioner must submit a formal petition to the Independent Electoral and Boundaries Commission (IEBC). The petition must:
- Be in writing and signed by a registered voter from the relevant constituency or county.
- Clearly specify the grounds for recall.
- Include a list of names representing at least 30% of registered voters in the constituency or county.
- Be accompanied by a fee equivalent to that required for filing an election petition.
The list must contain the following details of each supporting voter:
- Full name
- Address
- Voter card number
- National ID or passport number
- Signature
Additionally, at least 15% of voters from more than half of the county’s or constituency’s wards must be represented in the petition. The list must reflect Kenya’s ethnic, cultural, and religious diversity.
Verification and Approval
Upon submission, the petitioner must present the collected signatures to the IEBC within 30 days. The IEBC then has another 30 days to verify the signatures. If the petition meets all legal requirements, the IEBC will issue a recall notice to the Speaker of the respective House of Parliament within 15 days.
Conducting a Recall Election
The IEBC is mandated to conduct a recall election within 90 days of publishing the recall question. The ballot will present a simple “Yes” or “No” question regarding the MP’s removal. Each response will have an assigned symbol, and voting will be done by secret ballot.
A recall election is decided by a simple majority vote. If the recall is successful, the IEBC must conduct a by-election in the affected constituency or county.
Participation in By-Election
A recalled MP is generally allowed to contest in the by-election unless barred by specific legal provisions. If the recall was due to violations of Chapter Six of the Constitution, the Leadership and Integrity Act, or the Election Offences Act, the MP may be disqualified from future elections.
However, under Articles 1 and 38 of the Constitution, sovereign power belongs to the people. If the voters choose to recall and then re-elect the same representative, their political rights must be upheld, provided no legal disqualification applies.
Conclusion
The recall process is a crucial tool for holding MPs accountable to their electorate. While procedural and legal challenges exist, voters retain the constitutional right to remove non-performing representatives. The IEBC plays a central role in ensuring this process is conducted fairly and transparently. Understanding these provisions enables citizens to actively participate in governance and demand accountability from their leaders.
