• The Elections Act goes on to say that those who sign must include the “names of at least 15 per cent of the voters in more than half of the wards in the constituency”.
• In 2017 the High Court decided that the Elections Act provision about recall was unconstitutional.
An MP just lost his seat because he claimed certain expenses using a forged invoice, was convicted of forgery, and 19 per cent (10,005 people) of the registered voters in his constituency signed a petition to recall him. There will be a by-election, in which the former MP may stand if he wishes.
A few months ago another MP – from the opposite party — lost her seat. She had been convicted of perverting the course of justice because she lied about who had been driving her car when accused of speeding. She decided not to stand again – her party had expelled her and she was unlikely to win as an independent candidate.
You may realise that this is not about Kenya. It is in fact about the UK, which passed a Recall of MPs Act in 2015. But let us turn to Kenya. There are various questions we have to ask about a recall system.
The UK law simply allows an MP’s electors to decide whether they want their MP to continue if one of three things has happened.
Either he or she has committed a crime that is serious enough to be sent to prison, or a crime of providing false or information for allowances claims, or, finally, has been negatively reported on by the Committee on Standards and suspended by the House of Commons for a period. In another example – the State of Wisconsin in the United States –no reasons are specified.
Different concerns lie behind the Kenyan law. The Constitution of Kenya Review Commission draft in 2002 said recall could take place because of an MP’s physical or mental incapacity to perform the work of an MP, or serious misconduct, or “persistent neglect of the electorate”. The last is because of the number of Kenyans who complained that between elections they never saw their MP.
This was rather watered down later and appears in the current Constitution simply as the right of the electors of a parliamentary constituency to recall their member — leaving all the details to Parliament.
MPs treated this task as a joke, as they passed law clearly intended to make recall almost impossible. Under that law, a petition to recall a Kenyan MP could be brought only if there was a finding by the High Court against the MP. That finding must be of violating the provisions of Chapter Six of the Constitution (on leadership and integrity), of having “mismanaged public resources” or of having committed a crime under the Elections Act.
At least some of this is no longer law — but we’ll come back to that.
In the UK only 10 per cent of voters are required to make a recall petition valid. In Wisconsin the minimum number of signatures is 25 per cent of the number who voted in the election (so if 100,000 people voted in the relevant election, at least 25,000 signatures are required for a valid recall).
In Kenya 30 per cent of all the registered electors must sign. The Elections Act goes on to say that those who sign must include the “names of at least 15 per cent of the voters in more than half of the wards in the constituency”.
A recall election must follow: voters are asked, “Do you want X to remain as your MP/Woman Representative/Senator?” Only if a majority vote “No” will that person lose their seat. More: for this to be successful at removing the MP/Senator, at least 50 per cent of all the registered electors must agree.
If the MP loses the seat, there must be another, expensive, election!
Do you find some of these provisions confusing? You are quite right!
In the UK recall is not possible within six months before an election). But in Kenya, a recall cannot take place within twenty-four months after the election of the Member of Parliament nor within the 12 months before the next election. In other words, out of a five- year term, the member is only at risk of being recalled during two years.
What is no longer law and why?
So far no one in Kenya has tried to recall their MP or Senator or their MCA. One reason is the hurdles put in the way by the Elections Act.
So a case was taken to court. In 2017 the High Court decided that the Elections Act provision about recall was unconstitutional.
The Constitution says there is a right to recall. The High Court said this is part of the overall right to fair elections. Only clear law can limit rights. This law is not clear.
The most obvious problem was that one sentence of the law says a member is recalled if there is a simple majority vote for removal, while another sentence says at least 50 per cent of all the registered electors must concur.
The High Court was also right to say that it was wrong for the law to say you could only sign a recall petition if you were registered for the election in which the member you want to recall was elected; that is unfair to those registered later.
The Court also rightly said the law went too far when it said recall could only take place if there was a court order against the elected member. Look how often prominent people charged with crimes seem to be able to put off, or even prevent, any criminal case by getting High Court orders to prevent their arrest or charge.
PROBLEMS WITH THE LAW
There are other problems with the law. One is about the “names of at least 15 per cent of the voters in more than half of the wards in the constituency”.
Suppose the petition was to recall the Nairobi Senator.
It would be necessary to get the signatures of 25 per cent of the registered voters (in 2017 2.25 million people registered in Nairobi, so at least 675,000 signatures would be needed for recall).
In addition, in each of 43 wards, at least 15 per cent of the registered voters would have to sign. It is a huge burden.
The court said that the law on recall was unconstitutional. But not completely so — they had no problem with the time limits (leaving only two years to challenge an elected representative).
Much of the law on recall no longer exists. But the right still exists. The absence of law cannot abolish the right. Now that nearly two years have passed since the general elections, the window of opportunity for recall will open.
Recently the NGO Mzalendo published a scorecard for MPs and Senators. They listed eight constituency MPs and five county woman representatives, who had never spoken in the National Assembly, contrasted with three constituency MPs and one county woman representative who had each spoken more than 600 times. This is not the only measure of achievement, but it is fair to ask what these other MPs have been doing. What do they think they are elected (and paid generously) to do?
We have seen MPs acting out of sheer revenge to cut the resources of the Salaries and Remuneration Commission. Are they doing what they are expected to do? Or are they showing conflicts between private benefit and public duty — which the Constitution prohibits? And how about those who plot to defeat the gender principle?
If someone were to collect signatures of 30 per cent of the registered constituents of one of these parliamentarians and demand that they be recalled, the IEBC and the courts would be compelled to confront a blatant refusal to take the Constitution seriously. As things are, there is a serious danger of a constitutional right being a completely dead letter.
We need a serious discussion of this. The Wisconsin approach may be too generous.
It may give rise to representatives being recalled because their constituents don’t like them, disagree with their honest and responsible views, or their party leaders want to exercise patronage. But can we not devise answers to “Why recall?” that allow the neglectful, incompetent, or corrupt legislator to be recalled?