NAIROBI, Kenya – Members of the National Assembly have approved a one-third voter-support threshold for recalling MPs, rejecting a proposal that would have required support from at least half of registered voters in every ward or constituency affected by a recall.
The decision followed a heated debate over amendments to the Elections (Amendment) (No. 2) Bill, Senate Bill No. 29 of 2024, with lawmakers arguing over how to balance voters’ constitutional right to remove elected representatives against the risk of politically motivated recall campaigns.
Under the revised Clause 26A, a recall of a Member of the National Assembly will require support from at least one-third of registered voters in every ward within the affected constituency.
For a senator, the threshold will be one-third of registered voters in every constituency within the affected county.
A simple majority of voters participating in the subsequent recall by-election would determine its winner, separating the support required to initiate the recall process from the vote needed to decide the electoral contest.
The amendments send the Bill back to the Senate for consideration. Any unresolved differences between the two Houses will have to be addressed through the constitutional legislative process before the proposed law can proceed towards presidential assent.
Why MPs Rejected the 50pc Threshold
The debate intensified after Kimani Kuria proposed requiring support from at least 50 per cent of registered voters in every affected ward for an MP, or every constituency for a senator.
The proposal faced resistance from lawmakers who argued that such a high threshold could make it excessively difficult for voters to exercise their right to recall elected representatives.
Minority Leader Junet Mohamed urged the House to retain the one-third threshold recommended by the Justice and Legal Affairs Committee, warning that lawmakers risked repeating mistakes that had previously led courts to invalidate parts of the recall framework.
“If we repeat what the court has rejected, we will just be legislating in vain because the thing will go back to court again and the court will reject it again for the same reasons,” Junet told the House.
Majority Leader Kimani Ichung’wah also opposed the 50 per cent proposal, arguing that many MPs had not secured the support of half of registered voters in every ward during their own elections.
He said the recall framework should protect the electorate’s right to hold representatives accountable without creating an unnecessarily high barrier to removing an underperforming leader.
Mogaka’s Amendment Restores One-Third Requirement
West Mugirango MP Stephen Mogaka subsequently moved an amendment to restore the one-third threshold.
The House adopted the proposal, replacing Kuria’s suggested 50 per cent requirement with the lower threshold for both National Assembly members and senators.
Kuria later supported the revised wording, explaining that the provision addressed two separate stages: the level of support needed for a recall and the majority required to determine the winner of the ensuing by-election.
The distinction is important because the number of voters supporting a recall process is not the same as the number who must vote for a candidate in the resulting election.
MPs Warn Against Frivolous Recall Petitions
Homa Bay Town MP Peter Kaluma had called for Clause 26A to be recommitted to the Committee of the Whole House, arguing that the law needed to specify the level of voter support required to initiate a recall.
He warned that without a clear threshold, even a petition backed by very few people could trigger uncertainty and potentially unnecessary electoral disputes.
Millie Odhiambo supported reconsideration of the clause, while cautioning lawmakers against making decisions driven by political excitement rather than sound legislative principles.
Farah Maalim also raised concerns about the possibility of recall proceedings being initiated soon after an elected representative takes office, warning that the absence of a minimum period could encourage political disputes and litigation.
The debate reflected competing concerns: making it possible for voters to remove representatives who fail to meet their obligations, while preventing recall petitions from becoming routine political weapons.
What the Constitution Says About Recalling MPs
Article 104 of the Constitution gives voters the right to recall members of the National Assembly and Senate before the end of their terms. It also requires Parliament to enact legislation establishing the grounds and procedures for a recall. <Cite refs={[“turn486930search7”]}/>
However, attempts to establish a workable statutory framework have faced legal challenges.
In 2017, the High Court declared key provisions of the Elections Act governing the recall of MPs unconstitutional in proceedings brought by Katiba Institute and another petitioner. The ruling struck down provisions that imposed restrictions and procedures inconsistent with constitutional requirements.
The current Bill seeks to revise aspects of the recall framework, but the final wording will depend on the remaining parliamentary process and any subsequent legal scrutiny.
Bill Still Has Further Legislative Hurdles
The National Assembly’s approval does not mean the new threshold is already law.
The Senate must consider the amendments made by the National Assembly. If the two Houses disagree on the text, a mediation committee may be required to develop a version acceptable to both Houses under Article 113 of the Constitution.
The outcome will determine how Kenya operationalises the constitutional right of voters to recall their elected representatives, including the safeguards required to prevent abuse of the process.
For now, lawmakers have backed a one-third threshold rather than the proposed 50 per cent rule, but the final legal framework remains subject to completion of the legislative process.
