MPs demands for a higher salary have no doubt irked Kenyans.
Some Kenyans on Facebook even went to the extent of creating pages with names such as 'RIP Mithika Linturi' and 'Someone tell Mithika Linturi' after the Igembe South MP announced that he would move a motion in Parliament to disband the Salaries and Remuneration commission that had slashed MPs' salaries.
But no matter how mad Kenyans get over the behaviour and performance of MPs, it will be hard to recall them if the provisions in the Election's Act of 2011 are anything to go by.
Article 45 of the Act provides that the process must be initiated two years after the election. Equally, the recall shall not be initiated 12 months before the next general election.
This has to be done through a court petition that will seek ground to determine its validity. The elections were held last month and this means that any proper recall must be initiated in 2015.
The Bomas draft had envisaged a reliable and fairer process but it was expunged by MPs, only to be introduced in the Act. Section (1) of this provision states: “The electorate in a county or constituency may recall their Member of Parliament before the end of the term of the Parliament (National Assembly and Senate).”
This means an MP may be recalled if found, after due process of the law, to have violated the provisions of Chapter Six of the Constitution (Leadership and Integrity), to have mismanaged public resources or is convicted of an offense under the statute.
However, the process shall be initiated upon a judgment or finding by the high court. Lawyer Willis Otieno of the Electoral Institute for the Sustainability of Development in Africa says the original concept was decently mooted during the Bomas conference but was diluted by selfish political interests at the time of stakeholder input.
“Judging from the conduct of our MPs, it is clear that they could not have fixed themselves given their misappropriation of CDF funds,” says Otieno.
“The only viable option to employ could be through the election petitions but equally, this fails the test of incompetence especially when an MP is duly elected,” Willis says.
The practice also provides that a recall petition shall not be filed against a Member of Parliament more than once during his or her term.
The other limit is that a person who unsuccessfully contested an election shall not be eligible, directly or indirectly, to initiate a petition under this Act.
Barasa Nyukuri, a political analyst and governance specialist says MPs put unrealistic barricades to ensure this provision is purely academic.
“It would have been more feasible if the drafters of the constitution could have informed the process in the same manner in which the bill of rights was envisaged,” says Nyukuri.
The late Makueni Senator Mutula Kilonzo in an interview days before his death said to recall an MP, a voter is required to write the electoral commission to initiate the recall.
The letter must be signed by the petitioner who is a voter in the constituency or county in respect of which the recall is sought. It must also be accompanied by a High Court order.
“I have been calling for the amendment to the laws passed by guillotine in Parliament in 2011. This is just one of them,” Mutula said. Mutula was of the view that the further requirement of a list of names of voters in the constituency or county representing at least 30 percent of the registered voters and a fee prescribed for an election petition will further deter many Kenyans.
The list of names referred to in this case shall contain the names, address, voter card number, and the national identity card or passport number and signatures of the voters supporting the petition.
Names of at least 15 percent of the voters in more than half of the wards in the county or the constituency, is another task required. The names must respect the diversity of the people.
Kenya's politics is highly tribal; therefore, meeting ethnic diversity will be a great challenge. Another headache is that a recall election shall only be valid if the voter turn out is at least 50 percent of the total number of registered voters in the affected county or constituency.
In determining this validity, the commission shall initiate a referendum by issuing a gazette notice within 14 days. The outcome shall be decided by a simple majority of those participating in the exercise.