Recall: Judges bar MPs from choosing petitioners

A three -judge bench of the Constitutional Court nullified a law allowing MPs to legislate on who among the electorate has a right to petition for their recalling from the House.

In effect, the decision of the court means any voter can file a petition for recalling an MP.

The three judges Kanyi Kimondo, George Odunga and Chacha Mwita said Parliament cannot purport to legislate on what class of the electorate can initiate the recall process.

“In this case Parliament has been given power by the Constitution to legislate on the grounds on which a member may be recalled and the procedure to be followed. It cannot purport to exercise such powers to legislate on what class of the electorate can initiate the recall process,” said the judges.

They also held that Kenyans can initiate the recall any time after two years, following the election of MP or MCA.

The MPs or MCAs can be recalled over absenteeism from Parliament or constituency, among other reasons.

And to recall an MP, one must have at least 30% of registered voters in a constituency/ward sign on to support the petition, take the signatures and ground to IEBC for verification.

Once the IEBC is satisfied, it can go ahead and initiate a recall election.

If a simple majority of those voting opt to support recall, a by-election is held.

The decision of the three judges arose out of an application filed by Katiba Institute and Transform Empowerment for Action Initiative.

Katiba Institute challenged grounds, procedures and pre-condition for the recall of MPs.

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