IEBC seeks clarity on ‘unconstitutional’ recall law

October 6, 2017 3:43 pm
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A three judge High Court bench in March agreed with civil society group, Katiba Institute that Sections in the Election Act, 2011, were against the Constitution and the rights of the electorate/FILE

, NAIROBI, Kenya Oct 6 – The Independent Electoral and Boundaries Commissioners has asked Parliament to provide a clear procedure for recalling elected leaders after the High Court declared the current law unconstitutional.

IEBC Commissioner Abdi Yakub Guliye urged the Joint Parliamentary Select Committee scrutinizing the Election Offences (Amendment) Bill and the Election Laws (Amendment) Bill to provide clarity on the number of signatures needed to support a recall election, the verification process and the recall election.

Through the Election Act 2011, legislators in the Tenth Parliament had shielded themselves from being recalled by putting in place stringent requirements.

The requirements demanded that only a registered voter could initiate the process and that the petition must have the support of at least 50 per cent of registered voters.

The petitioner was also required to seek the court’s clearance to gather signatures.

A three judge High Court bench in March agreed with civil society group, Katiba Institute that Sections in the Election Act, 2011, were against the Constitution and the rights of the electorate.

The High Court cited Sections 46 and 48 that were declared as unconstitutional only indicating that an elected leader can be recalled if one has violated a State or Public Office and that the recall can only be done after one has been in office for 24 months after being elected.

The disputed law also stipulates that one cannot be recalled 12 months preceding the next General Election and that such a motion cannot be filed against a Member of Parliament or Member of the County Assembly more than once during a term.

Circumstances under which an elected leader can be recalled came to the fore after the decision by Kiambu voters to initiate a petition to recall their Woman Representative Gathoni wa Muchomba run into headwinds following doubts that it might not find favour with the law.

Muchomba, who was then yet to be sworn-in, angered voters by suggesting that she is not content with proposals by the Salaries and Remuneration Commission to lower the pay of MPs and Senators.

Sections 45(2)(3)and (6), 46(1)(b)(ii) and (c) and 48 of the Elections Act and Sections 27(2)(3) and (6) and 28(1)(b)(ii) and (c) of the County Governments Act were found to be ‘meaningless and superfluous.’

Section 45(2) spelled out that an MP would only be removed if found to have violated provisions of Chapter Six of the Constitution or is found to have mismanaged public resources.

The same section dictated that one had to go through the court and have a judgment.

Section 46, on the other hand, limited the process to only a person who was registered to vote in the election in respect to the area represented by the MP or MCA.

Section 48 dictated that a recall is valid if the number of voters who concur in the recall election is at least 50 per cent of the total number of registered voters in the affected county or constituency.

The judgment of the court means that any person, as long as you are a constituent of the MP or MCA who is to be ousted, can source for signatures and start the removal process.

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