The question of whether voters can sue their elected representative – say governor, senator, woman representative, member of National Assembly and member of county assembly – over unfulfilled pledges has been rife as the country gears for the August 9 general election.
A number of elected leaders are going back to the people for an evaluation of their performance – some for a single term and others for the second or third chances they got upon their reelection.
Lawyer Danstan Omari says the electorate cannot sue their MP or political leader for failing to fulfil promises made on the campaign trail.
“They can only vote them out or recall them. Political promises are not legally enforceable,” he said.
As such, the process of recalling an MP starts with a petition to the High Court with grounds why the said member should be recalled. It is only allowed 24 months after the election of the MP and not 12 months to the next general election.
Election losers are also barred from initiating a recall.
Section 45 of the Elections Act, 2011 says electorate of a county or constituency may recall their member of Parliament on grounds of violation of Chapter Six of the Constitution; mismanagement of public resources or is convicted of an offence under the electoral law.
The recall starts with a petition filed with the Independent Electoral and Boundaries Commission in writing and signed by the petitioner. The petitioner must be a voter in the constituency or county in respect of which the recall is sought, and was registered to vote in the election from which the recall is sought.
“A recall of a member of Parliament under subsection (1) shall only be initiated upon a judgment or finding by the High Court confirming the grounds,” the Act reads.
The court ruling is among the documents attached to the petition presented to the IEBC. The petition is also required to contain a list of at least 30 per cent of the region’s registered voters supporting the recall and be accompanied by a fee prescribed for any election petition.
Persons supporting the petition should also be drawn from more than half of the wards in the county or constituency – as appropriate – and be of diverse origins.
The names are to be provided within 30 days of filing a petition.
The IEBC is expected to verify the names within 30 days of receipt and if satisfied with the requirements, issue a notice of recall to the speaker of the respective House.
The commission is required to conduct a recall election within 90 days of the publication of the question. The question shall be framed for responses of either ‘Yes’ or ‘No’ – each with a symbol.
Voting is by secret ballot and the petitioned MP is also allowed to participate in the vote. If the sitting MP is removed in the recall vote, a by-election is held in the affected county or constituency.
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