The High Court has nullified sections of the law that had made it difficult for the electorate to fire a truant member of Parliament and county assembly. Legislators had shielded themselves from being recalled by putting in place stringent requirements. The requirements demanded that only a registered voter could initiate the process and that the petition must have the support of at least 50 per cent of registered voters.
The petitioner was also required to seek the court’s clearance to gather signatures. In a unanimous decision, High Court judges Kanyi Kimondo, George Odunga, and Chacha Mwita agreed with Katiba Institute that the sections of the law that shielded legislators from removal were unconstitutional. The three judges declared that sections 45(2)(3)and (6), 46(1)(b)(ii) and (c) and 48 of the Elections Act and sections 27(2)(3) and (6) and 28(1)(b)(ii) and (c) of the County Governments Act are meaningless and superfluous.
Section 45(2) spelled out that an MP would only be removed if found to have violated the provisions of Chapter Six of the Constitution or is found to have mismanaged public resources. The same section dictated that one had to go through the court and have a judgment. Section 46, on the other hand, limited the process to only a person who was registered to vote in the election in respect to the area represented by the MP or MCA. Section 48 dictated that a recall is valid if the number of voters who concur in the recall election is at least 50 per cent of the total number of registered voters in the affected county or constituency. But the judges found that the sections were against the Constitution and the rights of the electorate. The judgment of the court means that any person, so long as you are a constituent of the MP or MCA who is to be ousted, can source for signatures and start the removal process. In addition, the High Court opened the doors to election losers to also initiate the process.
By Muthoni Kamau, The Standard Newspaper, July 18th 2017