MPs’ Recall Expensive And Hard To Achieve

The CIC has painstakingly studied the various Acts passed by Parliament in the mad rush to meet the deadline of August 27 for enacting various new laws. It has made a number of criticisms of those laws, including of the Elections Act. You can read their comments in their Third Quarterly Report on their website site at http://cickenya.org/.

My own first concern is about the party list system intended to ensure representation of various marginalised groups. The National Assembly is to have 12: “to represent special interests”. The Act does require that these lists must comprise alternately men and women. But it does not ensure that every one of the National Assembly twelve are actually youth, persons with disabilities and workers (or from another “special interest”).

Isn’t it obvious that they must be? But for the counties the Act says a party list must “prioritise a person with disability, the youth and any other candidate representing a marginalised group”. Does this mean any other sort of person may also be on the list?

Also, for the National Assembly the MPs took care to say that this list may include any candidate for President or Deputy President – and are annoyed that somehow the word “not” crept in! But did they not realise that the Constitution reserves these 12 seats for these special groups? Were parties preparing to smuggle presidential candidates into their lists (as other “special interests” perhaps), to give them a second bite of the electoral cherry?

The CIC has picked out the issue of recall – quite rightly.  The CKRC proposed that electorates could recall their MPs for incapacity, misconduct or “persistent neglect of the electorate”. This disappeared at Bomas. The CoE reinserted it with no details, and even brought it back after the PSC removed it again in Naivasha. The Bill tried to provide details, even spelling out “desertion of the electorate” to include continual absence from the constituency, failure to adequately represent opinions of the electorate to the relevant house, to participate in work of the house and committees, or to keep the electorate informed, as well as committing a crime under the Act.

The MPs were not having any of this. Mr Wetangula rubbished the whole “desertion” provision. There is some justice in the complaint that these provisions were rather vague. But what the MPs did was to remove the whole idea of not doing a proper job of representing one’s constituency (which is what the Bill tried to capture) and limit recall to situations where the MP has violated Chapter 6 of the Constitution (on integrity), mismanaged public resources or committed a crime under the Elections Act.

But the Constitution already says that most of these situations lead to a member automatically losing his or her seat – so the Elections Act adds little new. In fact, the Act seems to make it harder than the Constitution to remove them for these things, because recall can only happen if there is a High Court order – while the Constitution seems to envisage other types of legal procedure, perhaps a magistrate’s court, a commission of inquiry or parliamentary committee. If they were trying to do this they can’t succeed, because the Constitution cannot be overridden by an ordinary law.

The MPs welcomed the idea that recall could take place only after an MP had been in off ice for 2 years, and could not happen in the last year of the life of Parliament. The CIC suggests this is unconstitutional – but there does seem some sense to it.

The recall process will work like this:

Someone initiates a recall petition: the MPs insisted that that person must have been registered to vote in the constituency at the previous election. The MPs introduced a provision saying that this person could not be a defeated candidate in the previous election. Before starting it may be necessary to go to the High Court for a special order that the MP has done one of the things listed.

The petition must be supported by at least 30% of the registered voters (not 10% as in the Bill), and must include at least 15% of the registered voters from each of more than half the wards in the constituency (not 5% as in the Bill).  In fact this requirement about wards did not apply to MPs in the Bill – only to recall of Senators. A vague requirement that the supporting voters must “reflect the diversity of the voters” cannot be blamed on MPs – it was in the Bill.

There would then be a recall “election” – Yes or No to a question like “Do you wish your MP to be removed?” The Bill wanted to ensure that recall really had support of voters –the final recall vote would not have been valid if less than half the registered voters participated. The MPs made a little change: “vote” became “concur”! So the MP would not be recalled unless at least half the registered voters vote “Yes”.

Finally a by-election; the MPs removed a provision preventing the recalled MP from contesting. There are problems with the whole recall notion – but the Elections Act as passed make it not just expensive but incredibly restricted and cumbersome, probably impossible to achieve.

The writer is a director with the Katiba Institute.