The Constitutional Right to Recall MPs in Kenya: Legislative Failure and the Violation of Democratic Rights
Introduction
The right to recall Members of Parliament represents a fundamental democratic principle that enables citizens to hold their elected representatives accountable during their term of office. In Kenya, this right is constitutionally enshrined under Article 104 of the Constitution of Kenya 2010, yet its practical implementation has been fraught with legal challenges, legislative inadequacies, and constitutional violations. This article examines the violation of citizens' rights to recall sitting Members of Parliament through Parliament's failure to enact comprehensive and constitutional legislation, analyzing the legal framework, judicial pronouncements, and the broader implications for democratic governance in Kenya.
Constitutional Framework: Article 104 and the Right of Recall
Article 104 of the Constitution of Kenya 2010 explicitly provides for the right of recall, stating that "Parliament shall enact legislation to provide for the grounds upon which a member may be recalled and the procedure to be followed." This constitutional provision establishes two critical elements: first, it recognizes the inherent right of citizens to recall their representatives; second, it places a mandatory obligation upon Parliament to enact enabling legislation to operationalize this right.
The constitutional drafters' intent was clear, that is to create a mechanism that would enhance democratic accountability and ensure that elected representatives remain responsive to their constituents throughout their tenure. However, the Constitution's deference to Parliament to establish the specific grounds and procedures has created a legal lacuna that has been exploited to frustrate the exercise of this fundamental democratic right.
Legislative Response and Inadequacies
Following the promulgation of the 2010 Constitution, Parliament initially appeared to comply with the constitutional mandate by including recall provisions in the Elections Act of 2011. Section 45 of the Elections Act provided specific grounds for recall, including gross misconduct, conviction for an offense, physical or mental incapacity, and violation of the leadership and integrity provisions under Chapter Six of the Constitution.
However, these legislative provisions have proven to be constitutionally deficient and practically ineffective. The grounds for recall were narrowly defined, creating an almost insurmountable threshold for citizens seeking to exercise their constitutional right. Moreover, the procedural requirements were so complex and burdensome that they effectively nullified the substantive right guaranteed by the Constitution.
Judicial Intervention: Constitutional Petition 209 of 2016
The inadequacy of the legislative framework came under judicial scrutiny in Constitutional Petition 209 of 2016, a landmark case that exposed the fundamental flaws in Parliament's approach to implementing Article 104. In this petition, the petitioners challenged the constitutionality of the recall provisions in the Elections Act, arguing that the legislation was inimical to both the letter and spirit of the Constitution.
The High Court's judgment in this case was particularly significant as it declared Section 45(2) of the Elections Act unconstitutional. The court found that the grounds for recall as stipulated in the Act were too restrictive and did not adequately reflect the broad democratic principle underlying Article 104. This judicial pronouncement effectively rendered the existing recall mechanism inoperative, leaving citizens without any practical means to exercise their constitutional right.
The Constitutional Violation: Analysis of Parliament's Failure
Parliament's failure to enact adequate legislation to implement Article 104 constitutes a direct violation of citizens' constitutional rights on multiple levels:
1. Breach of Constitutional Mandate
Article 104 imposes a clear and unambiguous duty upon Parliament to enact enabling legislation. The use of the word "shall" indicates that this is not a discretionary power but a mandatory constitutional obligation. Parliament's failure to fulfill this obligation after more than a decade since the Constitution's promulgation represents a fundamental breach of constitutional duty.
2. Denial of Democratic Rights
The right to recall is not merely a procedural mechanism but a substantive democratic right that enables citizens to maintain control over their elected representatives. By failing to provide an effective legal framework for recall, Parliament has denied citizens a fundamental tool of democratic participation and accountability.
3. Frustration of Constitutional Principles
Article 1 of the Constitution establishes that all sovereign power belongs to the people of Kenya and may be exercised directly or through their democratically elected representatives. The recall mechanism is a direct expression of popular sovereignty, and its frustration undermines this foundational constitutional principle.
Impact and Consequences of Legislative Failure
The failure to establish an effective recall mechanism has had far-reaching consequences for Kenya's democratic system:
Political Accountability Deficit
Without an effective recall mechanism, Members of Parliament have operated with impunity, knowing that citizens have no recourse to remove them from office between elections. This has contributed to a culture of political unaccountability and has weakened the representative link between MPs and their constituents.
Erosion of Public Trust
The inability of citizens to recall non-performing or corrupt representatives has contributed to growing public cynicism about the political system. Citizens feel powerless to influence their representatives' conduct once they are elected, leading to disengagement from the democratic process.
Constitutional Supremacy Questions
Parliament's failure to implement Article 104 raises broader questions about the supremacy of the Constitution and the willingness of state institutions to comply with constitutional mandates. This sets a dangerous precedent for selective implementation of constitutional provisions.
Legal Doctrine: Is the Right to Recall Contingent on Parliamentary Legislation?
A critical legal question emerges from this analysis: Is the constitutional right to recall Members of Parliament contingent upon Parliament passing enabling legislation, or does it exist as a self-executing constitutional right?
The Self-Executing Rights Doctrine
Under constitutional law, certain rights are considered self-executing and do not require legislative intervention to be enforceable. These rights derive their force directly from the Constitution and can be claimed and enforced by courts without additional legislation.
Arguments for Self-Execution
Several arguments support the view that the right of recall should be considered self-executing:
Constitutional Supremacy: Article 2 of the Constitution establishes the Constitution as the supreme law, and any law that is inconsistent with the Constitution is void. This principle suggests that constitutional rights should not be held hostage to legislative inaction.
Fundamental Rights Doctrine: The right to recall can be viewed as an aspect of the fundamental right to participate in political processes, which is protected under Article 38 of the Constitution.
Purposive Interpretation: A purposive interpretation of Article 104 suggests that the constitutional drafters intended to create an immediate right, with Parliament's role being to provide procedural clarity rather than to create the right itself.
Counter-Arguments
However, there are also arguments suggesting that legislative implementation is necessary:
Express Constitutional Language: Article 104 explicitly states that Parliament "shall enact legislation," suggesting that the constitutional drafters intended legislative intervention.
Procedural Complexity: The recall process necessarily involves complex procedural elements that require legislative specification, including verification procedures, thresholds, and administrative mechanisms.
Recent Developments and Current Status
Recent reports indicate that the Independent Electoral and Boundaries Commission (IEBC) has confirmed that four MPs are currently facing recall petitions, highlighting the ongoing public demand for accountability mechanisms. However, the commission has noted that the court's declaration of Section 45(2) of the Elections Act as unconstitutional has created procedural hurdles in processing these petitions.
This situation underscores the urgent need for Parliament to enact comprehensive and constitutional legislation to implement Article 104. The current legal vacuum not only violates citizens' rights but also creates uncertainty for electoral management bodies tasked with administering recall processes.
Recommendations and Way Forward
Legislative Reform
Parliament must urgently enact new legislation to replace the defective provisions of the Elections Act. This legislation should:
- Establish broad and reasonable grounds for recall that reflect democratic principles
- Create accessible and fair procedures that do not unduly burden citizens
- Provide clear timelines and administrative mechanisms
- Ensure compliance with constitutional principles and judicial guidance
Judicial Oversight
The judiciary should continue to exercise robust oversight over legislative compliance with constitutional mandates. Courts should be prepared to issue mandamus orders compelling Parliament to fulfill its constitutional obligations where necessary.
Civil Society Engagement
Civil society organizations should continue to advocate for effective recall legislation and should consider strategic litigation to compel compliance with Article 104.
Constitutional Reform Consideration
If Parliament continues to resist implementing effective recall legislation, consideration should be given to constitutional amendments that make the right of recall more explicitly self-executing.
Conclusion
The failure of Parliament to enact adequate legislation implementing Article 104 of the Constitution represents a serious violation of citizens' democratic rights and undermines the constitutional framework established in 2010. This legislative failure has created a democratic deficit that weakens political accountability and erodes public trust in the political system.
The right to recall Members of Parliament is not merely a procedural mechanism but a fundamental expression of popular sovereignty and democratic governance. Its effective implementation is essential for maintaining the delicate balance between representative democracy and direct citizen participation that the Constitution seeks to establish.
Parliament can no longer hide behind technical excuses or procedural delays. The constitutional mandate is clear, the judicial guidance is available, and the public demand is evident. The time has come for Parliament to fulfill its constitutional obligation and provide citizens with an effective mechanism to recall non-performing representatives.
The question of whether the constitutional right to recall is contingent on parliamentary legislation ultimately depends on one's interpretation of constitutional supremacy and the doctrine of self-executing rights. However, regardless of the theoretical position taken, the practical reality is that citizens currently lack an effective means to exercise this constitutional right, and this situation demands immediate remedial action.
Kenya's democratic maturity will be measured not by the rights promised in its Constitution, but by the effectiveness with which those rights can be exercised by its citizens. The right to recall represents a critical test of this democratic commitment, and Parliament's continued failure to act represents a failure of democratic governance itself.