Next month, the Senate is set to ignite a contentious debate on a Bill that seeks to overhaul the current provisions for recalling Members of Parliament (MPs). This Bill, which proposes the deletion of Sections 45, 46, and 48 of the Constitution, could significantly alter the power dynamics between the electorate and their representatives.
The proposed legislation follows a landmark ruling by a three-judge bench comprising Justices Kanyi Kimondo, George Odunga, and Enoch Chacha Mwita. The judges found the existing law under the Elections Act 2011, which governs the recall of elected leaders, to be vague, discriminatory, and unconstitutional. They argued that it failed to meet clear constitutional standards.
Presented by the Majority and Minority Leaders of the Upper House, the Elections (Amendment) Bill, 2024 aims to delete Sections 45, 46, and 48 of the Act, effectively making it easier to recall MPs. "The principal Act is amended by deleting section 45 Amendment of section 45 of No. 24 of 2011," the Bill states unequivocally.
What the law says: Under the current Elections Act, Section 45 provides a comprehensive framework for recalling an MP. It allows the electorate in a county or constituency to initiate a recall on grounds such as violations of Chapter Six of the Constitution, mismanagement of public resources, or conviction of an offence under the Act.
However, a recall can only proceed with a High Court judgment confirming these grounds, and it must be initiated between 24 months after an election and 12 months before the next general election. Additionally, a recall petition cannot be filed more than once during a member's term in Parliament, and unsuccessful election candidates are prohibited from initiating such petitions.
The process involves filing a petition with the Commission, detailing the grounds and including a list of supporters representing at least 30 per cent of the registered voters in the constituency or county. This list must also reflect the diversity of the electorate and be submitted within 30 days of filing the petition.
The Commission then has 30 days to verify the list, and if satisfied, must issue a notice of recall to the Speaker of the relevant House within 15 days. The recall election must occur within 90 days of the publication of the recall question, and it is valid only if at least 50 per cent of the registered voters in the affected area participate and concur with the recall.
What the Senate is doing: The Senate, however, proposes significant changes. Clause 25 of the Bill seeks to delete Section 45, which outlines the conditions under which an MP may be recalled. Clause 26 aims to remove provisions that required a recall petition to be signed by a voter registered in the relevant election and accompanied by a High Court order. Clause 27 proposes deleting Section 48, which currently stipulates that a recall election is valid only if 50 per cent of the registered voters in the affected county or constituency participate and agree to the recall.
According to the Senate Bills Tracker, the Bill will head into the Second Reading on August 3, a Saturday, but it may be moved to either Tuesday, August 6, or later that week. There has been no official communication from the Senate on the exact date.
The Bill, initially introduced by Senators Aaron Cheruiyot and Stewart Madzayo on March 7, 2024, was first read in the House on April 17. It was then withdrawn on April 22, only to be reintroduced on June 7 and first read on July 4, 2024. It was subsequently referred to the Committee on Justice, Legal Affairs, and Human Rights.
Why the Changes: This legislative move comes after the High Court nullified sections of the law that had made it difficult for the electorate to recall a truant MP or county assembly member. Legislators had previously shielded themselves from being recalled by implementing stringent requirements, such as demanding that only a petitioner who was registered to vote in the election in respect of which the recall is sought could initiate the recall and that the petition must have the support of at least 50 per cent of registered voters.
The High Court's decision was a response to a case brought by the Katiba Institute and the Transform Empowerment for Action Initiative (TEAM). The justices declared several sections of the Elections Act and the County Government Act to be meaningless and superfluous, and thus unconstitutional.
Sections of the law required that a leader could only be recalled if they had abused a State or public office, and the recall process could only be initiated after the leader had been in office for 24 months post-election. Additionally, no recall motion could be filed within 12 months preceding the next General Election, and only one recall motion could be filed against a leader during their term.
The court's judgment effectively means that any constituent of an MP or county assembly member can initiate the recall process by sourcing signatures. Furthermore, the High Court opened the doors for election losers to also initiate the process, provided they meet the necessary criteria.
What happens after Senate: If the Senate passes the amendments, they will be sent to the National Assembly for consideration, since the law affects the National Assembly. Whether or not the National Assembly agrees with the Senators, we will wait to see.
