Most Kenyan legislators have demonstrated a knack for abdicating their constitutional responsibilities of oversight and representation, as demonstrated by their blatant disregard for their peoples’ wishes in respect of the proposed Finance Bill 2024. Consequently, the people, fed up with their legislators’ shenanigans, have decided to take back the power they have donated to their supposed representatives. Well aware that the Kenyan Constitution provides for the Right of Recall, there have been increased inquiries over what Kenyans, disgruntled by their Members of Parliament, are supposed to do to exercise this right. Here is a breakdown of the procedure for recalling them, which is the same for both Members of Parliament and Members of County Assemblies.
The peoples’ right to recall an elected representative is anchored on Article 1 of the Constitution of Kenya which is categorical that,
(1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.
(2) The people may exercise their sovereign power either directly or through their democratically elected representatives.
(3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution —
- Parliament and the legislative assemblies in the county governments;
- the national executive and the executive structures in the county governments; and
- the Judiciary and independent tribunals.
(4) The sovereign power of the people is exercised at —
(a) the national level; and
(b) the county level.
It is apparent and indisputable from the above provision of the Constitution that legislators, whether at the national or county level, merely exercise representative authority donated and delegated to them by the people of Kenya. Therefore, should the exercise of those powers go against their desires, the people retain the ability to revoke that donation of power. Other than through the ballot, invoking the right of recall as stipulated under Article 104 of the Constitution is another means through which the people of Kenya can divest the legislators over those powers.
Article 104 provides as follows:
- The electorate under Articles 97 and 98 have the right to recall the member of Parliament representing their constituency before the end of the term of the relevant House of Parliament.
- Parliament shall enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed.
Unsurprisingly, true to its nature and habit of abdicating its constitutional duties, Parliament only made half-baked attempts to enact the requisite legislation as stipulated under Article 104 (2), but which were found wanting and declared unconstitutional by the High Court in Katiba Institute & Another v Attorney General & Another [2017] eKLR, which also affirmed that the right of recall is a political right of every Kenyan.
Therefore, any Kenyan patriot desirous of recalling their legislative representative has an inherent right to invoke Article 104 of the Constitution. The grounds for recall include that the Member of Parliament (MP) or County Assembly (MCA):
- Has grossly violated the Constitution or any other law;
- Is incompetent;
- Is culpable for abuse of office;
- Is guilty of gross misconduct; or
- Has been convicted of an offence punishable by imprisonment for not less than six (6) months.
The procedure for recalling your legislator, whether at the national or county level, is as follows:
STEP I: LODGE PETITION
A registered voter in the relevant electoral unit, whether a constituency or ward, shall lodge a written petition with the Independent Electoral and Boundaries Commission (IEBC), detailing the grounds for the recall. The petition must bear the petitioner’s signature. Additionally, one is required to pay a prescribed fee, which is thirty thousand shillings (KES 30, 000) for an MP and fifteen thousand shillings (KES 15,000) for an MCA.
STEP II: COLLECT VOTERS’ INFORMATION & SIGNATURES
The organizer/mobiliser should then collect the information including names, addresses, identification card numbers, voter card numbers, signatures, and any other relevant information in respect of all voters in support of the recall petition.
It is important to note that:
- This list MUST embody, at least, fifteen percent (15%) of the registered voters in more than half of the wards in the County or Constituency. The petitioner should also ensure diversity that is reflective and representative of the population within the ward, constituency, or county, whichever the case may be.
- This list MUST be submitted to the IEBC within thirty (30) days of lodging the petition under Step I above.
STEP III: VERIFICATION
IEBC is required to verify the list of names against the official voters’ register within thirty (30) days of receiving it. If not satisfied that the list meets the requisite threshold, IEBC should communicate the same to the petitioner, who may then proceed to rectify whatever anomalies that might have been identified by the Commission.
If satisfied with the list of names, IEBC is then required to, within fifteen (15) days, write to the Speaker of the National Assembly or Senate, as the case may be, informing them of the Notice of Recall.
STEP IV: RECALL ELECTION
IEBC is then mandated to frame and publish a ‘Recall Question’, which shall only require a ‘YES’ or ‘NO’ answer. IEBC is also required to attach a distinctive symbol to represent each answer. This question shall then be presented to the registered voters in the involved electoral unit in a ‘Recall Election’ where they will then decide whether the targeted legislator shall be recalled or not by secret ballot. The outcome of the ‘Recall Election’ shall be determined by a simple majority of the voters.
STEP V: BY-ELECTION
In the event that the simple majority in the recall election decide to oust the legislator, IEBC is required to organise a by-election within ninety (90) days. However, the ousted member is still allowed to vie as denying him the opportunity would qualify as discrimination.
Hence, the Constitution of Kenya enables the people to take back their power by providing an avenue through which they can send their legislators back home in the event that they fail to represent their wishes.