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Justice Joseph Onguto asks CJ to pick bench for MPs recall case

The High Court wants the Chief Justice to constitute a bench to hear a case on recalling of MPs.

Two non-governmental organisations are seeking an interpretation of the law on the recall of errant lawmakers.

Justice Joseph Onguto noted that the matter raises weighty constitutional issues and ought to be determined by not less than three judges.

He said the petition seeks to challenge the constitutionality of the clauses touching on recall of senators and MPs who have not performed to the expectations of the constituents.

“I find the matter urgent as it raises substantive questions of law,” justice Onguto ruled.

Former Committee of Experts official Prof Yash Pal Ghai of Katiba Institute and Transformation Empowerment for Action Initiative moved to court seeking interpretation of the recall law.


Mr Ghai said the National Assembly has failed to pass the requisite jurisdiction that governs recall of MPs in the event they do not perform their functions as expected.

He argues that Parliament has failed to address the issues raised under the Elections Act 2010 and the County Government Act 2012.

In a sworn affidavit, Ghai says the issues raised were of great public interest as they affect the nature of democracy in ensuring accountability of elected leaders.

He says the fifth schedule to the Constitution shows the legislation should have been passed within two years after promulgation of the supreme law.

But Attorney General Githu Muigai and the National Assembly opposed the application, saying it was speculative, having some ‘imagined’ difficulty in the implementation.

The law states that MPs who violate Chapter Six of the Constitution, and those found guilty of mismanaging public resources and those convicted of an offence can be recalled.