KATIBA CORNER

Murkomen’s new law on recall of MCAs is two-edged, sets MPs' own grounds

Parliament enthusiastic to amend recall laws affecting ward reps and not themselves. Why not?

In Summary

• Two things are worth highlighting in Senator Murkommen's bill (now Act) . First, it changed the grounds for recall to (i) violation of the Constitution or any law (ii) incompetence (iii) gross misconduct or (iv) if convicted of an offence punishable by imprisonment for at least six months.

• The second substantial 'amendment' was to delete the requirement that the court had to confirm the grounds of recall before the recall process could start.

Elgeyo Marakwet Senator Kipchumba Murkomen at the Senate on May 22.
RECALL: Elgeyo Marakwet Senator Kipchumba Murkomen at the Senate on May 22.
Image: ENOS TECHE

On July 9, President Uhuru Kenyatta signed into law the County Governments Amendment Bill 2020.

The Bill was introduced into Parliament by Elgeyo Marakwet Senator Kipchumba Murkomen when he was still the Senate Majority leader. The Act contains various amendments to the County Governments Act, including provisions regulating recall of MCAs. Recall amendments is what this article is about.

Article 104 of the Constitution provided for a right to electorates in a constituency or county to recall their Member of Parliament or senator. Unfortunately, it does not provide for when, why or how this can be done. Instead, it is left to Parliament to pass legislation “to provide for the grounds on which a member may be recalled and the procedure to be followed".

The Constitution of Kenya Review Commission included in its 2002 draft three grounds for recalling elected representatives. They were (a) physical or mental incapacity to perform their functions, (b) misconduct likely to bring disrepute to the office or (c) “persistent desertion of the electorate without reasonable cause”.

The Bomas National Constitutional Conference (one third of its members were MPs) removed the recall provisions. This may explain why the Committee of Experts, though it reintroduced recall, did so very briefly, perhaps fearing that Parliament would latch onto the issue and reject their draft constitution.

By 2012, Parliament had passed two laws with provisions on recall. The Elections Act specified the procedure and the grounds for recalling MPs. A replica procedure and grounds for recall of MCAs was included in the County Governments Act.

Unsurprisingly, parliamentarians legislated an impossible procedure for recall. First, they ring-fenced periods when a recall petition could not be filed: The two years from the date the MP/MCA was elected and not later than one year before the next general election. In other words, electorates had a window of only two years within which to file a recall petition. While there may have been good reasons for carving out a period after elections and before the general election to prevent recall, a blanket protection of three years was excessive.

The second onerous condition of the recall law was that the grounds required a decision by the High Court that the representative had violated Chapter Six of the Constitution [on integrity], mismanaged public resources or committed an offence under the Act.

This seemed to involve some new type of court process specially for recall. This was despite the same law requiring that at least 30 per cent of registered voters — including at least 15 per cent of the voters in more than half of the wards in the constituency — signed the recall petition.

This would be followed by a special recall vote and, only if at least half of all the registered voters voted for recall, a by-election. The Court requirement meant that recall was practically impossible given how long litigation takes and obviously, any representative facing the threat of recall would use all possible court processes to delay until the next election was less than a year away.

Third, Parliament minimised the possible grounds for recall, just copying grounds already in the Constitution. Essentially, parliamentarians found an ingenious way to circumvent the constitutional obligation requiring them to create additional (and relatively straightforward) grounds.

CHALLENGING THE RECALL LAW

Two civil society organisations, Transform Empowerment and Action Initiative and Katiba Institute, moved to court in 2016 challenging the constitutionality of the law.

They argued, among other grounds, that the requirement for a court to confirm the grounds for recall was unconstitutional because of the burden it imposed on a voter seeking to recall a representative. The Court agreed and invalidated that requirement.

Additionally, the two organisations challenged the law for reproducing grounds of removal already in the Constitution instead of — as the Constitution anticipated — providing additional grounds.

The organisations argued that what Parliament was expected to do was to legislate grounds that related to the relationship between the representative and those represented — similar to those proposed by the CKRC, including persistent desertion of the electorate.

The Court agreed with the first part of the argument, finding that MPs had not added anything new in the recall law as expected by the Constitution and the grounds it had outlined were superfluous since they were already provided for elsewhere in the Constitution – Chapter Six – or in the law on Leadership and Integrity.

However, the court did not specify what type of additional grounds should be added in the recall law. Ultimately, it seems the expectation of the Court was that the MPs would re-write the law and specify additional grounds.

THE MURKOMEN LAW

What does the Amendment Bill (now Act) introduced by Murkomen contain?

Two things are worth highlighting. First, it changed the grounds for recall to (i) violation of the Constitution or any law (ii) incompetence (iii) gross misconduct; or (iv) if convicted of an offence punishable by imprisonment for at least six months.

The second substantial 'amendment' was to delete the requirement that the court had to confirm the grounds of recall before the recall process could start.

But here are the problems with all these 'changes'.

As commented in last week’s Katiba Corner, the Amendment Act only covers recall of MCAs. Given that previously the recall law for MCAs was the same as that of the MPs, it is hard to understand what else, other than a patronising attitude to MCAs, and perhaps a reluctance to provide for their own recall, would make Parliament enthusiastic to amend recall laws affecting ward reps and not themselves.

Additionally, Murkomen’s Bill was introduced on December 14, 2017. The court’s judgment nullifying significant sections of the law on recall was made exactly five months earlier on July 14, 2017. No appeal was filed.

Murkomen’s law purports to amend the very sections of the County Governments Act that the High Court had already nullified in the TEAM and Katiba Institute case. That Parliament amended provisions that did not exist since the court had already invalidated them seems highly improper.

There is a more complex and structural problem: So far, there is no set framework to record and formally register provisions of law nullified by the courts. In South Africa, any invalidation of a law must be confirmed by the Constitutional Court and it is gazetted. Here we could have conflicting High Court decisions on whether a provision is unconstitutional.

There is a third problem with Murkomen’s law. Rather like the invalidated law, the amendments introduce grounds for recall similar to those that the Constitution already says make one disqualified: Violation of the Constitution and the law and being convicted of an offence punishable by imprisonment for at least six months (Article 99). It should not be for ordinary voters — at great expense and trouble — to take the initiative to remove a representative who is now constitutionally disqualified.

We need a simple process for removing such representatives, leaving recall to be used for its intended purpose: Removing representatives who have failed their electorate.

Still, there are some positive aspects of Murkomen’s law. The most critical is introducing grounds of recall that may be considered new, top of which are incompetence and gross misconduct. But more the incompetence than gross misconduct since the latter is likely already covered under Chapter Six.

But incompetence may go beyond what can be readily available under Chapter Six, including whether a representative has shown that he/she has an understanding of what the role of an MP/MCA entails. I am keen to know how many of our current MPs would pass that test.

Finally, and perhaps the greatest contribution of Murkomen’s law, is that if Parliament – as can be expected – continues to refuse to enact new grounds for recall, those it enacted to be used against MCAs also logically and legally apply in the recall of MPs. In other words, they have published the grounds for their own recall.

The author was one of the founders and first Executive Director of Katiba Institute