Why frustrated Kenyans cannot recall MPs

Some Kenyans are now seeking to understand the threshold required to recall a Member of Parliament, following the reconstitution of the electoral body, where some petitions have already been submitted.

Independent Electoral and Boundaries Commission (IEBC) Chairperson Erastus Ethekon confirmed that they have so far received four requests but clarified that the outcomes will depend on the merits.

“It is the right of every Kenyan to exercise that right to recall under the Constitution and as IEBC, we will be here to do that which we can or which the law allows us,” Ethekon said.

Last September, KMK Africa Advocates LLP wrote to the IEBC seeking clarification on the process of recalling a Senator, pursuant to Article 104 of the Constitution.

In response, IEBC Secretary Marjan Hussein Marjan stated that the Commission is guided by the provisions outlined in the Constitution and the Elections Act, which informs its processes.

“Sections 45 to 48 of the Elections Act provide grounds in which a Member of Parliament may be recalled and the procedure to be followed, as provided for under Article 104(2) of the Constitution of Kenya, 2010. In this case, Member of Parliament refers to both Member of National Assembly and the Senate,” Marjan explained in a letter dated September 9, 2024. 

Following the enactment of these provisions, he said a case was filed in court challenging some of the provisions.

Consequently, High Court in Nairobi, Constitutional Petition No 209 of 2016 (formerly Kisumu Petition Number 9 Of 2016), Katiba Institute & another vs Attorney General & another [2017] eKLR, declared Sections 45(2) (3) (6), 46(1)(b)(ii), 46 (1) (c) and Section 48 to be meaningless and superfluous and falling short of the constitutional imperative in Article 104 of the Constitution and thus unconstitutional.

“The Court declared Sections 45(1)(b)(ii) and 45(6) of the Elections Act as discriminatory and therefore, unconstitutional. We note that there are challenges on implementation of the recall clause as stipulated under the Elections Act, 2011 as Parliament is yet to revise the provisions relating to the recall of a Member of Parliament,” he explained.

Marjan noted that the case exposed legal gaps in the recall clause, particularly regarding the grounds for recall. He explained that Article 104 of the Constitution requires Parliament to enact legislation outlining both the grounds for recalling a member and the procedure to be followed.

However, the court declared Section 45(2) of the Elections Act — which provided the grounds for removal — unconstitutional. As a result, those provisions can no longer be applied in recall proceedings. In the absence of such legislation, the legal grounds for recalling a member remain undefined.

Regarding the initiation and hearing of recall petitions, Marjan said the Elections Act, 2011 had provided that such petitions be filed in court. However, this provision was also declared unconstitutional, leaving no clear legal framework for the process of hearing and determining a recall petition.

“In a nutshell, the declaration of vital sections of the recall clause under Part IV of the Elections Act illegal pose a challenge on the implementation of recalling a member,” he explained.

 Safeguarded themselves

He, however, said that at the time the clarification was sought, the Commission was not well constituted and could not authorize collection of recall signatures.

It also could not conduct verification to ascertain that the recall petition is supported by the requisite number of voters as this is a process that requires deliberation by Commissioners.

“In light of the above circumstances and legal provisions, the Commission presently cannot take any step as regards a petition to recall a Member of Parliament owing to lack of comprehensive legal framework to guide the process and the absence of members of the Commission, all of which are beyond the Commission’s control,” he stated then.

Lawyer Suleiman Bashir argued that Section 45(2) of the Elections Act is one of the salient provisions that provide for the grounds for removing an MP but at the moment, a template to borrow from may not be available.

“It is a bit difficult to recall or remove them from office as it is under Article 104 of the Constitution because if we try to do so, the MPs will move to court and it will be easy for them to challenge. The other aspect is for Kenyans to wait for the general election,” he told KTN. 

He said MPs safeguarded themselves from the process of removal.

Constitutional lawyer Ekuru Aukot has maintained that Kenyans still hold the sovereign power to recall non-performing elected leaders despite legal hurdles.

“If you read Article 1 together with Article 104 and Chapter 6, you’ll see that the power lies with the people,” Aukot said.

“If a representative continues to fail in office, it’s the right of the people to recall them. The bigger issue is the failure and betrayal of leadership.”

Aukot argued that current leadership does not align with either the letter or spirit of the law. “The letter may be failing us, but what about the spirit? Our elected leaders are meant to represent us. If they don’t, then we must return to the constitutional spirit.”
Instead of embracing the philosophical foundation of Article 104, Chapter 6, and Article 1, Aukot said leaders have frustrated the system, raising questions about the remedy for Kenyans.

“The same way we elect you, we should be able to reject you. You are our employee. That’s where the debate should be,” he added, pointing out the high level of commercialisation in politics.

Aukot emphasised that Article 1 gives Kenyans sovereign power, exercised directly or through elected representatives. “If they fail us, we take that power back. That’s the social contract.”

He said the inclusion of the recall clause in Article 104 reflected public frustration with failed leadership. “If representatives do not serve the people, they can be fired. That’s what we meant when we crafted Article 1.”

He added that MPs are expected to represent, legislate and hold government accountable. “But today, Parliament has become an extension of the Executive.