Despite a constitutional provision in Article 104 of the constitution giving Kenyans the right to recall their MP or MCA, the process is filled with endless red tape, making it no easy task. This is thanks to the Elections Act and County Government Act, enacted by the 10th Parliament, introducing requirements that were described by the Law Society of Kenya as ‘cumbersome’. A successful recall bid for an MP or MCA in Kenya was a little short of a miracle.
In 2016, however, Katiba Institute and Transform Empowerment for Action Initiative (a community based organisation in Kisumu) filed a petition with the High Court challenging the provisions of these two acts. They argued that the process frustrates the right of Kenyan citizens to recall members of the National Assembly without any obstacles and was therefore unconstitutional. Their petition was successful and the case was moved from Kisumu to Nairobi, to be heard by a three judge bench.
The court ruling was passed on July 17th 2017 and from the summary of the ruling that Katiba Institute shared on twitter, the process has gotten a little easier
Here are Katiba Institute’s tweets;
Article 104 gives the citizens the right to recall their member of parliament, parliament enacted laws to make this a reality
— Katiba Institute Off (@katibainstitute) July 18, 2017
However, the Elections Act and County Government Act enacted by parliament, sought to make this a very difficult experience.We went to court
— Katiba Institute Off (@katibainstitute) July 18, 2017
Just to give you a recap of what the issues were, we will share the infographics that we used in March 2016.First we showed you the law pic.twitter.com/XWwdhu9Gaf
— Katiba Institute Off (@katibainstitute) July 18, 2017
Secondly,we showed you how far Parliament had walked away from and how they had tried to kill the spirit of the Constitution pic.twitter.com/cTwqtVXqyW
— Katiba Institute Off (@katibainstitute) July 18, 2017
Thirdly, we showed you how Parliament had actually made recalling MPs very hard, which was to frustrate the Rights in the Constitution pic.twitter.com/jyyxIdbs6K
— Katiba Institute Off (@katibainstitute) July 18, 2017
Fast forward to July 17th 2017 and the court issued the Judgment. Now this is where you need to pay most attention
— Katiba Institute Off (@katibainstitute) July 18, 2017
The Judges recognized that Art 2(4) of our Constitution states "any law that is inconsistent with the constitution is void to that extent"
— Katiba Institute Off (@katibainstitute) July 18, 2017
The High Court the Court invalidated the grounds of recall that Parliament wanted to introduce through these two Acts. WIN
— Katiba Institute Off (@katibainstitute) July 18, 2017
In addition the High Court determined that the Requirement that the Court must confirm grounds for recall had no basis. WIN
— Katiba Institute Off (@katibainstitute) July 18, 2017
Further, Parliament wanted to stop election losers from initiating a recall petition. The High Court found this to be DISCRIMINATORY! WIN
— Katiba Institute Off (@katibainstitute) July 18, 2017
Furthermore, Parliament wanted to stop new voters from participating in the recall petition. what does this mean?
— Katiba Institute Off (@katibainstitute) July 18, 2017
It means that a 17 year old at the time of election, could not participate in a vote to recall their MP when he/she turned 19
— Katiba Institute Off (@katibainstitute) July 18, 2017
The Court disagreed totally with that provision. This was undemocratic and discriminatory against new voters pic.twitter.com/6uV75eqZx4
— Katiba Institute Off (@katibainstitute) July 18, 2017
So the Court held: new voters can participate in the removal of the MP even if they weren't eligible to vote @ the previous election. WIN
— Katiba Institute Off (@katibainstitute) July 18, 2017
Parliament then sneakily included a provision that you could only recall an MP if more than 50% of the registered voters vote pic.twitter.com/EwXWHxRxx4
— Katiba Institute Off (@katibainstitute) July 18, 2017
Basically, Parliament was saying that to recall an MP in a constituency of 50,000, if 25,000+ people don't vote, then the recall fails
— Katiba Institute Off (@katibainstitute) July 18, 2017
REGARDLESS OF THE OUTCOME
— Katiba Institute Off (@katibainstitute) July 18, 2017
There was no basis for such a provision.
— Katiba Institute Off (@katibainstitute) July 18, 2017
On the grounds of their case in which Katiba Institute wasn’t successful;
We asked the High Court to overturn the requirement that (1)recall petition can only be initiated two years after election……..
— Katiba Institute Off (@katibainstitute) July 18, 2017
We asked the High Court to overturn the requirement that(2) recall petition cannot be done later than one year before next general election
— Katiba Institute Off (@katibainstitute) July 18, 2017
Final prayer that was not granted was our request to have the High Court require Parliament to pass a new law within a specified timeline
— Katiba Institute Off (@katibainstitute) July 18, 2017
On why their petition and the subsequent ruling was so significant,
Well, first, if your MP is not performing, you don't need to wait for a General Election to #FagiaWote pic.twitter.com/A8312egcC6
— Katiba Institute Off (@katibainstitute) July 18, 2017
Secondly, Katiba Iko Imara, the fundamental rights of the people of Kenya in our Constitution will not be diluted pic.twitter.com/JsKOyq7LB0
— Katiba Institute Off (@katibainstitute) July 18, 2017
Third, as long as you are a voter, you cannot be stopped from participating in your own governance processes pic.twitter.com/BJx5tgizSh
— Katiba Institute Off (@katibainstitute) July 18, 2017
A summary of the ruling was also published in an article on katibainstitute.org