NAIROBI, Kenya, Mar 5 – Chances of reintroducing in the constitution review a recall clause which gives Kenyans power to elect a new MP before the end of a five-year term should the sitting one underperform appear extremely slim, according to experts.
Constitutional Lawyer Kibe Mungai told Capital News on Thursday that the clause had only a 10 percent chance of revival because the present review was not people driven.
“The only role of Kenyans in the new process is to write letters and perhaps to go to where the offices of the experts are and give their views,” he said.
“But if those views do not find favour with the committee of experts together with the parliamentary select committee, then it would mean that what Kenyans are really interested in is unlikely to find itself in the new constitution and that includes the recall clause.”
In an interview with Capital News, Mr Mungai said the recall clause was rejected in the 2003 Bomas draft because it was unpopular among MPs.
“The removal of that recall clause is one of the contentious issues that are in Kenya but the political class does not consider it to be an issue,” said Mr Mungai.
He said since the current constitution review spearheaded by a nine-member committee of experts had no provision to ensure that popular issues amongst the people – but not MPs – were fairly considered, it was highly unlikely the clause would survive.
“There is a case where some Bishops and other Civil Society Organisations have gone to court to contest the review process saying it is not right to have a new constitution being made by organs controlled entirely by MPs, in view of the controversy surrounding the constitution making process in Kenya,” the lawyer added.
In the Bomas constitutional talks, the delegates particularly non-politicians had suggested that in view of the serious dissatisfaction in the performance of Kenyan MPs after they had been elected, it was prudent to include the recall clause in the constitution, but this was shot down by legislators who were of the opinion that it would be used maliciously.
But Mr Mungai said that although this could be true, it should not be a reason to hold back democracy.
He said the clause could be insulated from malice if during a by-election there is at least 70 percent voter turnout and over half of these voters agree that their MP should be recalled.
Recently, a committee of experts was appointed by President Mwai Kibaki to come up with a new constitution in 12 months.
The nine-member team is chaired by Senior Counsel Nzamba Kitonga and is expected to sift through the Bomas, Kilifi and Wako drafts to come-up with a final document that will be presented to Parliament for approval, before it is taken to a referendum.