The confirmation by the Independent Electoral and Boundaries Commission (IEBC) that four MPs face ouster through the recall clause of the Constitution is a key step in actualising the law that allows Kenyans to terminate the term of their elected legislators before the end of their term.
While MPs have made the law a difficult one to implement, including what is seen by legal experts as steep demands to be met by petitioners interested in recalling their MPs, the presence of a fully-constituted IEBC team means the first step has been taken in bringing the provision into effect.
“We currently have four (recall) petitions. We will look at them once we go back to the office. It is the right of every Kenyan to exercise the right of recall under the Constitution, and as IEBC, we will do what we can, we will receive those petitions, examine them and respond to them accordingly,” IEBC chairman Dr Erastus Ethekon told journalists in Mombasa.
The commission, however, did not mention the four MPs targeted by the petitions.
One of the petitions seen by Sunday Nation dated August 21, 2024 filed at the commission—and replied to—was to recall Senator for Tharaka-Nithi County Mwenda Gataya.
Photo credit: Nation Media Group
The petition which is signed by seven petitioners on behalf of others accused Mr Gataya of gross discrimination in the discharge of his duty, gross abuse of office, misconduct and violation of leadership and integrity and failure of conducting public participation and representation during the consideration of the Mung Bean Bill, 2022 (popularly known as Ndengu Bill) by the Senate.
Those who signed the petition include Jackson Njagi Muchege, Newton Mugambi Boore, Dennis Mwaki Chabari, Morris Mawira, Agnes Mwende Justus, Seth Mark Kinoti and Christine Kanana Kithinji.
Mr Boore confirmed to the Sunday Nation that they are still on with the petition now that IEBC is fully constituted.
“By next week, we will follow up with the IEBC on whether to have a new petition or proceed with the one that we filed last year. We now have commissioners in place, not like last time,” Mr Boore said.
“The issues we have with the Senator are now worse than what we had last time,” Mr Boore added.
“We, the undersigned, are residents and registered voters of Maara, Chuka, and Tharaka Constituencies within Tharaka-Nithi County. We write to formally express our intent to initiate the process of recalling the elected Senator for Tharaka-Nithi County, Hon. Mwenda Gataya, from office. This action is necessitated by what we believe to be gross violations of the Constitution of Kenya, 2010, committed by the Honourable Senator over the past two years,” reads the petition, which goes on to list other allegations.
IEBC chief executive Marjan Hussein Marjan told the petitioners in a September 9, 2024, reply that the petition could not be processed as the secretariat had no legal right to verify signatures to ascertain that the recall petition is supported by the requisite number of voters, since the process requires deliberation by commissioners.
“In the light of the above circumstances and legal provisions, the commission presently cannot take any steps as regards a petition to recall a Member of Parliament owing to lack of comprehensive legal framework to guide the process and the absence of members of the commission, all of which are beyond the commission’s control,” reads the letter.
Tharaka-Nithi Senator Mwenda Gataya.
Photo credit: Dennis Onsongo | Nation Media Group
But while the issue was the absence of commissioners—who have since been recruited—the Marjan letter exposed other loopholes that could see targeted MPs still walk free, and finish their term.
The commission also cited legal challenges in effecting the recall clause stating that the court considered a number of Article 104 and the Election Act, 2011 as unconstitutional.
Article 104 provides that Parliament shall enact legislation that provides for the grounds upon which a member may be recalled and the procedure to be followed.
The commission, however, said the court declared section 45 (2) of the Election Act, which provided for grounds for removal as unconstitutional hence, the same cannot be applied for recall purposes.
“In the absence of such grounds, the removal of a member through a recall remains unfounded in law,” Mr Marjan said.
The commission is also at a crossroads since Parliament is yet to align the Elections Act in accordance with the court judgment.
Mr Marjan further stated that the Elections Act, 2011, provides that a recall petition may be filed in court; but this, too, was declared unconstitutional.
“As such, there is no mode of the process of hearing and determining a recall petition. In a nutshell, the declaration of vital sections of the recall clause under the Elections Act poses a challenge to the implementation of recalling a member,” Mr Marjan said.
However, the petitioners in their petition pointed out that the Constitution and the courts have affirmed the electorate's right to recall their representatives, which they say cannot be nullified due to legislative inaction.
In 2017, a three-judge bench comprising Kanyi Kimondo, George Odunga and Chacha Mwita declared the law on recall of MPs as meaningless, discriminatory and unconstitutional.
The High Court declared sections 45 (2) (3) and (6), 46 (1) (b), (ii) and (c) and 48 of the Elections Act (Cap 7) and sections 27 (2) (3) and (6) and 28 (1) (b) (ii) and 9c) of the County Governments Act (Cap265) unconstitutional in its judgment in a case of Katiba Institute and Another vs Attorney General and Another (2017).
The process of recalling a Member of Parliament (MP) in Kenya is governed by the Constitution and the Elections Act. An MP can be recalled on four grounds: gross violation of the Constitution or any law, committing an offence under the Elections Act, misconduct likely to bring disrepute to the office, or mismanagement of public funds. However, a recall can only be initiated if the High Court has made a judgment confirming such violations, mismanagement, or a conviction under the Elections Act.
A voter from the MP’s constituency must start the recall process by applying in writing to the IEBC, detailing the reasons for the recall. The IEBC reviews the application and, if it meets legal requirements, issues a recall petition form within 14 days.
The petitioner then has 30 days to collect signatures from at least 30 per cent of registered voters in the constituency. Each signature must include the voter’s name, ID number, and voter registration number. Additionally, a list of at least 15 per cent of the signatories must be presented as witnesses.
The IEBC will verify the authenticity of the signatures within 30 days. If the petition is valid, the IEBC must notify the Speaker of the National Assembly within 14 days. The Commission will then conduct a recall election within 90 days, where voters will decide with a simple majority (50 per cent + 1) whether the MP should be removed.
If the majority votes “yes,” the MP loses their seat, and the IEBC will conduct a by-election in the constituency within 90 days. However, the recalled MP is allowed to contest in the by-election.
There are restrictions on recall petitions: they cannot be filed more than once during an MP’s term, cannot be initiated by someone who unsuccessfully contested for the seat, and cannot be filed within the first 24 months after the MP’s election or within 12 months before the next general election.
