Simplifying Accountability: Understanding The Process And Challenges Of Recalling An MP In Kenya

By Steve Biko Wafula / Published June 19, 2024 | 6:03 am



Sendoff Package

Recalling a Member of Parliament (MP) is a cornerstone of democratic accountability and empowerment, ensuring that elected representatives remain answerable to their constituents throughout their tenure.

This mechanism provides a direct line of recourse for voters when their MP fails to uphold the principles of integrity, transparency, and good governance enshrined in the Constitution. It acts as a vital check against abuses of power, misconduct, and dereliction of duty, fostering a political environment where leaders are continually motivated to act in the best interests of their electorate.

The recall process reinforces the principle that sovereignty belongs to the people, who have the ultimate authority to judge the performance of their representatives and demand better leadership if necessary. By empowering citizens to hold their leaders accountable, the recall mechanism not only deters malfeasance but also promotes a culture of active civic engagement and political responsibility. In essence, it is a crucial democratic tool that ensures governance remains transparent, responsive, and truly representative of the will of the people.

In Kenya, the process of recalling a Member of Parliament (MP) is enshrined in the Constitution, aimed at enhancing accountability and ensuring that elected leaders remain answerable to the electorate. Despite these provisions, the actual implementation of this process has proven to be challenging. I would like to delve into the procedural steps required to recall an MP, the challenges inherent in this process, and potential solutions, while also highlighting recent judicial interpretations and rulings on the matter.

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Constitutional Provisions and the Recall Process

The recall of an MP is governed by sections 45, 46, and 48 of the Elections Act, alongside Chapter Six of the Constitution, which deals with leadership and integrity. The process is initiated when an electorate feels that their representative has violated constitutional provisions or mismanaged public resources. Here’s a step-by-step breakdown of the recall process:

  1. Initiation: A registered voter in the constituency represented by the MP must initiate the recall process. This voter must demonstrate valid grounds for recall, such as violation of the Constitution or gross misconduct.
  1. Collection of Signatures: The initiator must gather signatures from at least 30% of registered voters in the constituency, including at least 15% from each ward within the constituency. This ensures widespread support for the recall.
  1. Petition to the IEBC: The collected signatures, along with the petition, are submitted to the Independent Electoral and Boundaries Commission (IEBC) for verification. The IEBC then determines if the petition meets the necessary legal requirements.
  1. High Court Clearance: Previously, the petitioner had to seek clearance from the High Court to gather signatures. This step added a layer of judicial oversight to ensure that the recall process was not abused.
  1. Recall Election: If the petition is validated, the IEBC sets a date for the recall election. During this election, voters decide whether to recall the MP or allow them to continue serving.

Challenges in the Recall Process

Despite being constitutionally grounded, the recall process faces several challenges:

  1. Stringent Requirements: The need to gather signatures from 30% of registered voters is a formidable task, often seen as a deterrent due to the sheer number required and the logistical difficulties involved.
  1. Judicial Bottlenecks: The necessity of High Court clearance, though now nullified, previously added to the complexity and duration of the process, potentially dissuading petitioners due to the legal costs and time involved.
  1. Political Intimidation: Petitioners and supporters often face political intimidation and harassment, which undermines the democratic process and discourages active participation.
  1. Resource Constraints: Organizing and conducting a recall election requires significant financial resources, which can be a limiting factor for many constituents.

Overcoming the Challenges

To enhance the effectiveness of the recall process and mitigate the challenges, the following measures could be implemented:

  1. Simplifying Signature Collection: Lowering the percentage of required signatures or using digital platforms for signature collection could ease the burden on petitioners.
  1. Strengthening Legal Protections: Providing legal protections for petitioners and supporters can shield them from political harassment and intimidation.
  1. Public Awareness Campaigns: Educating the electorate on their rights and the recall process can foster a more engaged and informed citizenry.
  1. Streamlining Judicial Processes: Ensuring that judicial processes related to recalls are expedited can reduce delays and make the process more accessible.

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Judicial Interpretations and Rulings

The High Court has played a pivotal role in interpreting and shaping the recall process. In a landmark ruling, the High Court nullified sections of the law that made it difficult for the electorate to recall MPs. High Court judges Kanyi Kimondo, George Odunga, and Chacha Mwita agreed that the stringent requirements, including the need for High Court clearance to gather signatures, were unconstitutional. They emphasized that these provisions curtailed the rights of voters and were against the principles of democracy and political accountability.

In their unanimous decision, the judges stated, “The effect of these provisions is to curtail the rights of voters who are subsequently registered. We see no rational basis for suppression of this fundamental political right.” This ruling has opened doors for a more straightforward and less cumbersome recall process, aligning with constitutional principles and enhancing democratic governance.

The recall process for MPs in Kenya is a crucial democratic tool designed to hold elected leaders accountable. While challenges exist, judicial interventions and potential reforms can make this process more accessible and effective. By simplifying procedural requirements, protecting petitioners, and raising public awareness, the electorate can exercise their constitutional rights more freely and effectively, thereby strengthening Kenya’s democratic fabric.

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About Steve Biko Wafula

Steve Biko is the CEO OF Soko Directory and the founder of Hidalgo Group of Companies. Steve is currently developing his career in law, finance, entrepreneurship and digital consultancy; and has been implementing consultancy assignments for client organizations comprising of trainings besides capacity building in entrepreneurial matters.He can be reached on: +254 20 510 1124 or Email: info@sokodirectory.com

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