Send your nonperforming MCA Home!

Guided by the failure of leadership in successive governments, the drafters of the Constitution saw it wise to have a clause in the Constitution that would allow recalling of elected leaders. Article 104 states that elected leaders, Senators and MPs can be recalled. 

Moreover, electorates can also recall a Member of County Assembly (MCA).

The process of recalling is the same for all and what differs is the threshold that needs to be reached due to population dynamics in the respective leadership areas. For instance, it will take less people to sign signatures for removing an MCA and most for removing a Senator.

In this article, I focus on MCAs

Disqualification by law; 
As stipulated in Article 193(2) of the Constitution, one is disqualified from being elected a member of county assembly if the person;

1. Is a state officer or other public officer, other than a member of county assembly
2. Has at any time within the 5 years immediately before the date of election, held office as a member of the Independent Electoral and Boundaries Commission. 
3. Has not been a citizen of Kenya for at least 10 years immediately preceding the dates of election. 
4. Is of unsound mind 
5. Is an undischarged bankrupt 
6. Is serving imprisonment sentence of at least 6 months 
7. Has been found, in accordance with any law, to have misused or abused a state office or public office or to have contravened chapter six (Article 193(2) of the Kenyan Constitution, 2010. 

Removal/ Recall of an MCA by law
The recall of a member of county assembly is done on the following grounds, if the member;

1. Is found, after due process of law, to have violated the provisions of chapter six of the constitution. 
2. Is found after due process of law to have mismanaged public resources. 
3. Is convicted of an offense under the Elections Act (No 24 of 2011). However, it is guarded by certain Conditions;

• It is only Initiated Upon a judgment of the High Court 
• It is only initiated 24 months after the Election and not twelve months preceding Election 
• It shall not be filed against a member more than once.
• A person who unsuccessfully contested in the election cannot initiate a petition under this section (Section 27(1) - (6) of The County Governments Act no 17 of 2012). 

Petition for Recall by voters under Article 104
A petition for recall shall be in wrtiing and filed with the Independent Electoral and Boundaries Commission (IEBC). It shall be signed by a petitioner who;
 Is a voter in the ward
 Was registered to vote in that election and
 Be accompanied by a High Court Order.
However, this was changed by a court order of July 17th 2017. Under these new regulations, any petitioner can file this kind of petition as long as you are registered to vote anywhere in Kenya.

The petition shall;
a) Specify the ground which the recall is sought.
b) Contain a list of such number of names of voters which represent 30% of registered voters in that ward. The list shall contain names, address , voters’ card numbers. The voters shall represent diversity of the people in the ward. The commission shall verify the list within a period of thirty days of the receipt.
c) Include a fee prescribed for the petition
The commission if satisfied by the verification and process, within 15 days shall notify the speaker.
The commission shall carry out the recall election within ninety days of publication of question (Section 29(1-7) of The County Governments Act no 7 of 2012)

Vacation of Office of MCA 
It is prescribed in the constitution (Article 194 (1) (a-g) of the Kenyan Constitution, 2010) that an office may be declared vacant;
a) If the member dies
b) The member is absent for eight sittings without giving satisfactory reasons to the speaker.
c) If the member is removed from office under article 80 of the constitution.
d) If the member resigns in wring addressed to the speaker
e) In case of political party the member resigns and for an independent candidate the member joins a political party.
f) At the end of term of the assembly or
g) If the member is disqualified from the elections on grounds specified in 193(2).