The National Assembly during a sitting.
The recall of an MP has been simplified in a proposed law as Parliament moves to implement a judgment of the High Court that declared parts of the recall clause in the Elections Act unconstitutional.
The Elections (Amendment) Bill 2024 by Senate leader of minority Stewarts Madzayo (Kilifi), seeks to delete sections 45 and 48 of the Elections Act in their entirety while making modifications to section 46 to comply with the High Court directive.
The Bill, however, proposes to leave section 47 of the Act that provides for recall elections, intact.
“The principal Act is amended by deleting sections 45 and 48,” reads clauses 25 and 27 of the Bill.
Article 104 of the constitution and section 45 of the Elections Act, provides for the right of recall of members of the National Assembly and the Senate.
“The electorate have the right to recall the Member of Parliament representing their constituency before the end of the term of the relevant House of Parliament,” reads Article 104 of the constitution.
The Article goes on to mandate parliament to enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed.
Section 45 of the Act, which was declared unconstitutional by the High Court in a case filed by Katiba Institute, a civil society organization, provided for conditions under which an MP may be recalled.
Section 48 of the Act provided that a recall election shall be valid if the number of voters who concur in the recall election is at least 50 percent of the total number of registered voters in the affected county or constituency.
Section 46 (1) (b) (ii) and (c) of the Act required that a petition to recall an MP must be signed by a petitioner who was registered to vote in the election in respect of which the recall is sought.
The law also required that the petition must be accompanied by an order of the High Court, making it almost impossible to initiate the recall of an MP.
However, the High Court, in a judgment, agreed with the Katiba Institute that the MPs enacted the law to make it difficult for their recall and therefore unconstitutional and must be deleted from the Act.
Since the Elections Act became operational in 2012, there has never been a single attempt to trigger the recall of an MP, something that city lawyer David Ochami says was a cover-up by the MPs to protect themselves.
“The good thing about our constitution is that it has elaborate checks and balances against certain excesses. If the MPs thought they were protecting themselves against their own bullet, then they were misguided because the courts exist to check on the law they make,” says Mr Ochami.
Mr Ochami noted that what remains is to ensure that the MPs enact the law as directed by the court expeditiously.
“We must never tire from holding our MPs accountable. There is a need to ensure that the changes they make to laws are in consonance with the constitution and not for their self-aggrandizement,” says Mr Ochami.
The impugned section 45 of the Act provided that the electorate in a county or constituency may recall their MP before end of the term of the “relevant House of Parliament.”
The law went on to state the grounds for the recall, which include if an MP is found, after due process of the law, to have violated the leadership and integrity under Chapter Six of the constitution and if convicted of an offence under the Elections law.
However, the MPs placed a rider in the law such that their recall “shall only be initiated upon a judgment or finding by the High Court confirming the grounds for the recall,” making it almost impossible to recall them.
The law was further engineered to provide that a recall shall only be initiated at least 24 months after the election of an MP and not later than 12 months immediately preceding the next general election.
This means that with the court judgment, an MP may be recalled anytime provided that the grounds are merited and that there is no mischief.
There was also the requirement that a recall petition shall not be filed against an MP more than once during his or her term.
This provision raised eyebrows considering that County Governors can be impeached more than twice in a term of five years.
The law also went ahead to provide that a person who unsuccessfully contested an election is not eligible, whether directly or indirectly, to initiate a recall petition.
