The process for recalling a Senator in Kenya is governed by the same legal framework as that for a Member of the National Assembly (MP), Article 104 of the Constitution and the Elections Act, 2011.
The procedure is nearly identical, with the main difference being that all requirements apply at the county level rather than the constituency level.
Before starting the process, there are crucial rules to consider:
• Timing Window: A recall can only be initiated 24 months (2 years) after the official was elected and not within the last 12 months (1 year) before the next general election.
• One-Shot Rule: A recall petition against an MP, Senator or MCA can only be filed once during their term of office.
The Elections Act, 2011 specifies the legal grounds on which a recall can be initiated and they include:
• Violation of the provisions of Chapter Six (Leadership and Integrity) of the Constitution.
• Mismanagement of public resources.
• Being found guilty of a criminal offense that would warrant removal under the law.
• Gross misconduct or incompetence.
The petition must clearly state which of these grounds it is based on.
The step by step process on how to recall a Senator in Kenya
1. Filing the petition
The process begins when a voter from the specific constituency or county files a formal recall petition with the Independent Electoral and Boundaries Commission (IEBC).
The petition must be:
• In writing.
• Signed by the petitioner.
• Accompanied by the prescribed fee (Ksh 30,000 for an MP or Senator; Ksh 15,000 for an MCA).
The petition must clearly state which of the grounds, stated above, that it is based on.
2. Gathering and submitting signatures
After filing the petition, the petitioner has 30 days to collect and submit to the IEBC a list of names of voters who support the recall.
• The list must contain names representing at least 30% of the registered voters in the constituency or county.
• To ensure broad support, the signatures must include at least 15% of the registered voters from more than half of the wards within that constituency or county.
3. Verification of signatures by the IEBC
Once the list of supporters is submitted, the IEBC has 30 days to verify that all the names belong to registered voters in that specific electoral area.
If the IEBC confirms that the signature threshold has been met, it has 15 days to issue a notice of the recall to the Speaker of the relevant House (the National Assembly for an MP, or the Senate for a Senator).
4. The recall election
After the notice is officially published, the IEBC is required to conduct a recall election within 90 days. In this election, registered voters in the constituency are asked a single question: “Do you support the recall of [Name of MP/Senator/MCA]?”
The recall is decided by a simple majority. If the number of “Yes” votes is higher than the “No” votes, the recall is successful.
What happens next?
• If the recall fails (more “No” votes), the MP, Senator or MCA continues to serve their term, and no further recall can be attempted against them.
• If the recall succeeds (more “Yes” votes), the Speaker will declare the seat vacant. The IEBC will then proceed to conduct a by-election to fill the position.
Interestingly, the law allows the recalled MP, Senator or MCA to contest in the by-election for a chance to win back their seat.