The electorate, which has the right to elect members of the National Assembly and Senate under Articles 97 and 98, respectively, also has the right to recall elected Members of Parliament (MPs) under Article 104 of the Constitution before the end of their term. The Constitution additionally states that Parliament shall enact legislation to specify the grounds for recall and the procedure to be followed. 

The Fifth Schedule to the Constitution required that legislation be enacted within two years of its promulgation. However, 15 years after the promulgation, no legislation has been passed concerning the right of recall. This undermines public accountability and democracy. Civil society organisations have petitioned courts to seek orders compelling Parliament to comply with the provisions of Article 104(2) and the Fifth Schedule. Unfortunately, the judiciary’s hands are tied regarding issuing mandates for the legislature due to the principle of separation of powers. Indeed, the political elephant in the room is that asking MPs to devise a law that could be used against them in the future presents a dilemma.

The Elections Act attempted to include provisions on the right of recall; however, these provisions were so restrictive that the High Court declared them unconstitutional in Katiba Institute & another v. Attorney General & Another [2017] eklr. These provisions placed restrictions on who could recall an MP; for instance, a person who had unsuccessfully contested an election was ineligible to initiate a petition to recall a member of Parliament. The Elections Act also stated that a petition for the recall of a member could only be initiated upon a judgment or finding by the High Court confirming the grounds specified in the Act, which included violation of the provisions of Chapter Six of the Constitution, mismanagement of public resources, and conviction of an offence under the Act.

Additionally, a recall could only be initiated 24 months after the election of the MP, and no later than 12 months before the next general election. However, it could not be filed against an MP more than once during their term in Parliament.

The County Government

Self-preservation instincts suggest that legislation on the right of recall may not be a primary concern for the legislature. It would take a sober-minded parliament, free from shortsightedness and genuinely considering the interests of Kenyans, to advocate for such a legislative measure. The right of recall is not a favour to Kenyans but a democratic right to assess their elected representatives and remove them if they fail to fulfil their mandates. Democracy should not only be exercised every five years but also daily through holding elected officials accountable.