KIBRA DECIDES

Kibra: When and how by-elections are held in Kenya

In Summary

• By-elections affect the Members of the National Assembly, Senators and the Members of County Assemblies.

• The Constitution spares two elective posts in the country from carrying out by-election.

An elderly voter being taken through the voting process by IEBC official at Chillpark polling station, Muliro gardens in Kakamega County during the Presidential Rerun polls on October 26, 2017.
An elderly voter being taken through the voting process by IEBC official at Chillpark polling station, Muliro gardens in Kakamega County during the Presidential Rerun polls on October 26, 2017.
Image: FILE

In 55 days, Kibra residents go to the ballot for their first by-election since the constituency was created before 2013 general elections.

By-election can also be referred to as a special election. It occurs regularly within the term of Parliament due to various circumstances.

The exercise affects the Members of the National Assembly, Senators and the Members of County Assemblies.

 

Routes to by-election

By-election happens when the incumbent person falls victim of one of the ten listed conditions.

The first is when the current MP, Senator or an MCA dies. This is the case in Kibra constituency, after the death of the late Ken Okoth who succumbed to cancer.

It also happens when the incumbent member resigns willingly by writing to the Speaker of the National Assembly, the Senate of Speaker of the County Assembly.

The Constitution also stipulates that the by-election shall be held if the member is absent from eight consecutive assembly sittings without written permission to inform the speaker about his/her absence. The explanation should be good enough to convince the speaker.

The special election can also be witnessed in an area if the person in power is removed from the office for violating Chapter 6 of the constitution which is about leadership and integrity.

Another step to by-election is when the member of a political party which sponsored him/her decides to ditch it for another party or resigns officially from the party.

This also applies to an independent candidate if he/she decides to join a certain political party after ascending to power.

 

By-election can also be held in an area if the sitting member is disqualified on elections grounds as articulated in Article 193(2).

This is if the member loses a seat through a successful petition where the High Court or Supreme Court invalidates the win because of malpractices.

The exercise can also be carried out if the existing member is found to be of unsound mind after clinching to power. The same thing can happen if the member is declared bankrupt.

The electorate can take part in the by-election if they recall their representative. Articles 97 and 98 of the law says that voters have the right to recall the member of Parliament representing their constituency before the end of the term of the relevant House of Parliament.

According to the Elections Act, a member can only be recalled at least two years after being elected and not less than one year (12 months) before the next general elections. The petition to recall a member cannot be filed more than once during the term of the targeted person.

The electorate can also hold a by-election if an incumbent member is imprisoned for a period of more than six months.

Who initialise by-election?

The Speaker of the Parliament, Senate or the county assembly is the one mandated by the Constitution to write to the Chairperson of the electorate commission informing him/her of the vacancy.

The chairperson will then gazette the date of the by-election which should be done within three months from the date of the announcement.

The Commissioner in the Gazetted notice inform the interested persons wishing to feel the seat to submit their details within a specific date and the procedure to be followed.

The commission also informs aspirants about the time to begin and end their campaigns. This comes after the commission is satisfied by candidates details proving that he/she is an eligible aspirant.

NOTE:

The Constitution spares two elective posts in the country from carrying out by-election.

In the case of Presidential election, a repeat voting process is arranged by the electorate Commission the Supreme Court nullifies the win on irregularities. This happens after a period of 60 days upon nullification.

In the case of governors, the deputy governor steps in until the term ends.

In the 2010 Constitution, a by-election would happen if the incumbent Member of Parliament would be appointed for a ministerial position.

This is no longer the case since the Constitution bars appointing MPs as the Cabinet Secretaries.