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What the law says about petition to recall an MP

Monday August 26 2019
ballot box

IEBC officials prepare for a constituency by-election on April 4, 2019 in Nairobi. PHOTO | EVANS HABIL | NATION MEDIA GROUP

By MAUREEN KAKAH

Five residents from Nakuru County have petitioned the Independent Electoral and Boundaries Commission (IEBC) to have first-time Molo Member of Parliament Francis Kuria Kimani recalled as a legislator, saying he failed to exercise authority assigned to him as a public trust in a manner that is consistent with the law.

What does the law say about recalling an MP?

  • When can you recall an MP?

The Elections Act stipulates that an MP 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 for the recall cannot be filed more than once during the term of the targeted MP.

  • Who should petition for a recall?
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While it may be easy for anyone to want to file such a petition, those who unsuccessfully contested the election, which the MP they are seeking the recall won, are barred from doing so as the law considers them as not eligible directly or indirectly.

The petition must be filed with the Independent Electoral and Boundaries Commission (IEBC) in writing by a voter in the constituency or county in which the recall is sought.

The said voter must have been registered to vote in the election preceding the recall.

  • What is the process of filing a petition?

Section 45 and 46 of the Elections Act requires that those seeking to recall an MP get the support of at least 30 percent registered voters in the constituency in addition to 15 percent in every ward.

Both the petitioner and the IEBC each have 30 days to collect the support list and verify it, respectively.

Within 15 days after verification, the commission must issue a notice of recall to the relevant speaker.

IEBC is then required within 90 days by law to conduct a recall election, which shall be decided by a simple majority.

However, the election can only be valid if at least 50 percent of the registered voters in the affected county or constituency vote to recall.

If the petition survives, the IEBC shall conduct a by-election and the recalled MP is free to participate in the by-election.

  • What are the ground for a recall petition?

According to lawyer Waikwa Wanyoike, a recall petition can be filed over violation of the Leadership and Integrity law as provided for in the Constitution.

“The Constitution provision on recall expects that a recall petition can be based on any aspect of leadership and integrity under Chapter Six or generally on objective grounds of voters’ loss of confidence and trust with their elected representative,” said Mr Wanyoike.

There are three grounds in which electorates in a county or constituency have a right to recall their representative.

They are:

  1. A violation of provisions of Chapter Six of the Constitution;
  2. Mismanagement of public resources; and
  3. If one is convicted under the Elections Act.
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