A Member of Parliament can only be recalled after 24 months of being in office and 12 months before the next General Election/FILE
This comes after the 10th Parliament amended the Elections Act and inserted what the Law Society of Kenya (LSK) terms as ‘cumbersome requirements’ that Kenyans would have to meet before their recall bid sails through.
While expressing concerns with the provisions on Tuesday, LSK Chairman Eric Mutua told Capital FM News that the legislators have made it impossible for Kenyans to successfully remove unfit MPs from office.
He noted that the provisions give Kenyans a one year window during which to initiate the recall in addition to depositing Sh500,000 with the Independent Electoral and Boundaries Commission.
“Kenyans wanted a simple manner in which they can hold MPs accountable. They didn’t want a situation where the recall clause is for superficial purposes,” he argued.
“And it is a mirage for anyone to say that they can exercise their right of recall in the manner in which the procedure has been established,” he added.
A Member of Parliament can only be recalled after 24 months of being in office and 12 months before the next General Election.
The petitioner must also get 30 percent support from registered voters in that constituency in addition to 15 percent voters’ support in all the wards in the constituency.
In addition to this, the petition must be taken to the High Court which will then confirm whether a recall is necessary. No time limit is given for this and it would take more than one year.
Mutua added that the LSK would go to court in about a month’s time to have those specific provisions declared unconstitutional.
“I will take this up to our committee on public interest litigation. They will run through it and then come up with a decision that will be taken to council. In about a month we can file a suit in court to declare certain aspects of that legislation as unconstitutional,” he said.
Some civil societies have been threatening to initiate the recall process to send the MPs home in view of their recent clamour for a pay hike.
Meru County woman representative Florence Kajuju however dismissed the lobbyists saying the initiative would be futile because members cannot be recalled because of demanding for a pay hike.
The law states that members who violate Chapter Six of the Constitution, those found guilty of mismanaging public resources and those convicted of an offence can be recalled.
“They (civil societies) don’t even seem to understand the law because you cannot recall a MP before they have served for two years and they shouldn’t condemn us just because we are demanding that our salaries are taken back to where they were in the 10th Parliament,” she argued.
A former Commissioner in the now defunct Committee of Experts Bobbi Mkangi however told Capital FM News that the time limits and the support thresholds had been put in place to ensure that the recall clause was not abused or used to settler personal scores.
In his opinion, it was set up to serve as a balance that would ensure that Kenyans’ right of recall and that of MPs to remain in office were protected.
“These balances are there to ensure the recall facility is not used to abuse a democratic process. If these checks were not there may be we would have MPs who are constantly held under siege,” he explained.
The Elections Act also allows members who have been recalled to participate in the subsequent by-election and while the LSK argued that that was unconstitutional, Mkangi said that the circumstances for the recall would dictate whether or not such a member should be allowed to participate.
“If a person is recalled because of Chapter Six of the Constitution or because of mismanaging resources, then he shouldn’t be allowed to participate in the by-election, but if it was because of offences under the Elections Act, then this issue could be debated,” argued Mkangi.
Mutua however maintained that such members should keep off the subsequent by-election because they had been recalled for failing in one way or the other.
“How do you again qualify to run after being recalled? That is unconstitutional. You shouldn’t qualify because you have made the constituency go through a by-election and the country will have to spend money,” he argued.
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