Article 104 of the Constitution gives the electorate the right to recall the member of Parliament representing their constituency before the end of the term of the relevant House of Parliament.
The members of Parliament that the electorate can recall are the–
- Members of the Senate;
- Members of the National Assembly; and
- County Women Representatives.
For election purposes, each county constitutes a single member constituency.
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How to Recall a Member of Parliament
Recall for nominated members of Parliament is subject to the political parties that nominated them.
Part IV of the Elections Act provides the grounds and procedure to recall a member of parliament.
Grounds to recall a Member of Parliament in Kenya
The High Court, through the Constitutional Petition 209 of 2016(External Link), declared the grounds for recalling a member of Parliament unconstitutional as they currently appear in Section 45(2) of the Elections Act.
The same ruling extended to problematic provisions to recall the members of the County Assembly in the County Governments Act.
In 2020, members of Parliament amended the County Governments Act on the recall of members of the County Assembly to reflect the High Court ruling. They (purposely) ignored to extend the same amendments to their recall in the Elections Act.
Therefore, it might seem like there are no grounds to recall an MP. However, that’s not the case because the Constitution anticipates sabotage(External Link).
The constitution (and Courts) recognize that a right cannot be denied or frustrated just because parliament has failed to enact a law to provide how that right shall be exercised. In such instance, the responsible body must find ways to facilitate the enforcement of the right when required to.
Consequently, between the Constitution, what was left of the recall provisions in the Elections Act, the new provisions on recall in County Governments Act and the Court judgment [in the Constitutional Petition 209 of 2016], there is sufficient (and clear) guidance to help the voter exercise the right of recall and for the Independent Electoral Boundaries Commission (IEBC) to facilitate the exercise of recall.
Therefore, based on the statements above, the grounds to recall a Member of the County Assembly apply to the recall of a member of Parliament.
Concerning the grounds of recall: Parliament – in the amended County Governments Act – has now provided…the grounds for recalling an MCA…
These grounds are – through constitutional logic – equally applicable in the recall of an MP.
Taking all that information into consideration, the grounds to recall a member of Parliament in Kenya are as follows–
- gross violation of the Constitution or any other law;
- incompetence;
- gross misconduct; or
- if convicted of an offence punishable by imprisonment for at least six months.
The recall for a member of Parliament shall only be initiated twenty-four months after the election of the member of Parliament and not later than twelve months immediately preceding the next general election.
This means that a voter can only recall a member of Parliament in Kenya in the third and fourth year of the member’s term of office.
A recall petition shall not be filed against a member of Parliament more than once during the term of that member in Parliament.
Petition to recall a Member of Parliament in Kenya
The recall shall be in petition form and the petitioner shall file the petition with the Independent Electoral and Boundaries Commission (IEBC).
The petition shall be in writing and the petitioner who signs it shall be a voter in the constituency or county for which they seek the recall.
The petition to recall a member of Parliament shall–
- specify the grounds for the recall;
- contain a list of names of voters in the constituency or county. The names shall represent at least thirty per cent of the registered voters; and
- be accompanied by the fee prescribed for an election petition.
The “fee” here is the equivalent of court fees a person who challenges an election of an MP pays when they initiate an election petition.
The list of names shall contain the names, addresses, voter card numbers, national identity card or passport number and signatures of the voters supporting the petition. The list shall also contain names of at least fifteen per cent 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 shall represent the diversity of the people in the county or the constituency, where possible. This diversity includes ethnic, cultural and religious diversity.
The petitioner shall then submit the list of names collected to the Independent Electoral and Boundaries Commission within thirty days after filing the petition. The Commission shall 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, the Commission shall within fifteen days after the verification, issue a notice of the recall to the Speaker of the relevant House of Parliament.
Recall elections
The Commission shall conduct a recall election for the relevant constituency or county within ninety days of the publication of the question (to be determined at the recall election). The question shall be in a manner that requires a “yes” or “no” answer.
The Commission shall assign a symbol for each answer to the recall question. The voting at a recall election shall be by secret ballot.
A recall election shall be decided by a simple majority of the voters voting in the recall election.
Where a recall election results in the removal of a member of Parliament, the Commission shall conduct a by-election in the affected constituency or county.
A member of Parliament who has been recalled may run in the by-election. However, there are exceptions.
There will of course be situations where the recalled member may be barred from contesting in the by-election. For instance, where the recall petition arises from violation of Chapter Six of the Constitution; or the Leadership and Integrity Act; or, the Election Offences Act, the recalled member may be barred by the Elections Act from participating in future elections. But if a member is recalled in circumstances that do not bar him as a candidate, it would be unreasonable to invalidate his candidature. The reason is self-explanatory: Under Articles 1 and 38 of the Constitution, all sovereign power belongs to the people. If the voters chose to recall and re-elect the same representative, we must respect their political rights; unless of course where the candidate is expressly barred by law from contesting in subsequent election(s).