Report Of The Jlahrc On A Petition By Laban Omusudi On Recall Of President Or Governor Through Citizen Iniative

13THPARLIAMENT|5THSESSION

THESENATE

STANDINGCOMMITTEEONJUSTICE,LEGALAFFAIRSAND HUMANRIGHTS

REPORTONAPETITIONBYMR.LABANOMUSUNDIREGARDING THEENACTMENTOFALEGALFRAMEWORKTOPROVIDEFOR RECALLOFTHEPRESIDENTORAGOVERNORTHROUGHA CITIZENINITIATIVE

PAPERS LAID

DATE

1106.2026

TABLED BY

Sen Dan Maanzolof the

Onbehac

TLAHR

COAMITTEE

JLAHR

APPROVED

LERK AT THE TABLE

AbdiRahmac.

RT.HON

.SEN

AMASON

KINGI

Clerk's Chambers, The Senate, Parliament Buildings, NAIROBI.

TABLEOFCONTENTS

| List ofAbbreviations andAcronyms (ii) | |----------------------------------------------------| | Preliminaries.. (ii) | | ForewordbytheChairperson. (iv) | | Chapter1:Introduction | | Right toPetitionParliament | | Summary of thePetition. | | Chapter 2:Consideration of thePetition | | Introduction | | Consideration of the proposed provisions | | Chapter3:Committee Observations Observations... 10 | | Chapter 4:CommitteeRecommendation | | Recommendation. 12 | | ListofAnnexes. 13 |

LISTOFABBREVIATIONSANDACRONYMS

AG

Office of theAttorneyGeneral

CAF

County Assemblies Forum

IEBC

Independent Electoral and Boundaries Commission

KLRC

Kenya Law Reform Commission

PRELIMINARIES

EstablishmentandMandateoftheCommittee

The Standing Committee on Justice, Legal Affairs and Human Rights is established under the Standing Orders of the Senate and is mandated'to consider all matters relating toconstitutional affairs,the organization and administration of law and justice, elections,promotion of principles of leadership,ethics,and integrity; agreements, treaties and conventions; and implementation of the provisions of the Constitution on human rights.'

MembershipoftheCommittee

The Committee is comprised of-

| | 1.Sen. Wakili Hillary Kiprotich Sigei, CBS, MP | Chairperson | |----|--------------------------------------------------|------------------| | 2. | Sen.Veronica W. Maina, CBS, MP | Vice-Chairperson | | 3. | Sen.RaphaelChimeraMwinzagu,MP | Member | | 4. | Sen. Karen Njeri Nyamu, MP | Member | | 5. | Sen. Andrew Omtatah Okoiti, MP | Member | | 6. | Sen. (Prof.) Tom Ojienda, SC, MP | Member | | 7. | Sen. Crystal Asige, MP | Member | | | 8.Sen. Daniel Kitonga Maanzo, EBS, MP | Member |

Minutes of the Committee in considering thePetition by Mr. Laban Omusundi on the enactment of a legal framework to providefor the recall of thePresident or a Governor througha citizeninitiative are attached tothisReportasAnnex1.

FOREWORDBYTHECHAIRPERSON

Honourable Speaker,

On Thursday, 12'h February, 2026, the Speaker of the Senate reported that a Petition had been received from Mr. Laban Omusundi, a citizen of the Republic of Kenya based in Nakuru, regarding the enactment of a legal framework to provide for recall of the President and Governorsthrougha citizeninitiative.

Honourable Speaker,

The Committee embarked on its consideration of the Petition, whereupon it held a meeting with thePetitioner tobetter understandthebackground,rationale and justificationfor the proposed amendments. The Committee further invited and received written responses from the Office of the Attorney General, the Independent Electoral and Boundaries Commission, Kenya Law Reform Commission and the County Assemblies Forum.

A summary of the Petition is set out at Chapter One of the Report, while an overview of the submissions received from stakeholders is set out at Chapter Two of the Report.

Honourable Speaker,

Havingconsidered thePetitionand thesubmissionsreceived thereon,theCommittee observedthattheConstitutionestablishes anexhaustive andclosedframeworkfor the tenure and removal from office of thePresident, and outlines the instances under which the Office of the President may become vacant under Articles 142 to 146. That being the case, Parliament lacks the legislative competence to enact a law providing for citizen-initiated recall of a President, and such a mechanism may only be introduced through a Constitutional amendmentin accordancewiththeproceduresset outunder Articles255to257oftheConstitution.

Likewise, the Committee observed that the grounds for the removal of a county governor from office are set out under Article 181 of the Constitution, with the procedurefor thesameoutlined atsection33of the County GovernmentsAct.

The Committee noted that the proposal to introduce citizen-initiated recall of the PresidenttouchesonthearchitectureofexecutiveaccountabilityenshrinedinChapter Nine of the Constitution and would require a referendum under Article 255(1)(f),and that theinvolvementofParliament and thecounty assembliesintheremoval procedures for the President and county governors is a deliberate constitutional safeguard ensuring that removal from high office is subjected to institutional scrutiny, public accountability and due process.

Thatbeingthecase,theCommitteefoundthattheproposedlegislationwouldcontradict andunderminetheconstitutionallyprescribedremovalproceduresforthetwooffices, andrecommendsthatitberejectedbytheSenate.

Honourable Speaker,

I take this opportunity to thank the Petitioner as well as the stakeholders who submitted written comments which greatly assisted the Committee in its deliberations and determinationonthePetition.Icommend theMembersoftheCommitteefortheir diligence in executing this assignment, and thank the offices of the Speaker and Clerk oftheSenateforthesupportextended totheCommitteewhichmadetheconsideration ofthePetitionsuccessful.

Honourable Speaker,

It is now my pleasant duty, pursuant to standing order 238(2) of the Senate Standing Orders, to present the Report of the Standing Committee on Justice, Legal Affairs and HumanRights on its consideration of a Petition by Mr.Laban Omusundi regarding the proposed enactment of a legislative framework to provide for recall of the President and Governorsthroughcitizeninitiative.

OЗ-06:θ

Signed..

Date..

SEN.WAKILIHILLARYKIPROTICHSIGEI,CBS,MP CHAIRPERSON,STANDINGCOMMITTEEONJUSTICE,LEGALAFFAIRS ANDHUMANRIGHTS

CHAPTERONE:INTRODUCTION

1.1 RighttoPetitionParliament

1. The right to present petitions to public authorities is provided for at Article 37 of the Constitution.Article 119(1) further provides that^Every personhas a right to petition Parliament to consider any matter within its authority, including to enact, amend or repeal any legislation.' 2. Parliament enacted the Petition to Parliament (Procedure) Act (No. 12 of 2012) to make provision for the procedure for the exercise of this right. Further, Part XXVII of theStanding Ordersof theSenate alsomakesprovision of how thisrightmay be exercised.

1.2Summary of the Petition

3. At the sitting of the Senate held on Thursday, 12th February 2026, the Speaker of theSenatereportedthataPetitionhad beenreceivedfromMr.Laban Omusundi, a Kenyan Citizen based in Nakuru, regarding the enactment of a clear and enforceable allowingcitizenstodirectlyrecall thePresidentor CountyGovernors. 2. 4.The salient issues raised in the Petition were—

• a) whiletheConstitutionprovidesfor therecallofMembersofParliament (MPs) and Members of County Assemblies (MCAs), it lacks a similar mechanism for the heads ofthe national and county executives;
• b) concern that Parliament and County Assemblies are often compromised by political patronage, financial inducements, or party intimidation. The petitioner submitted that this compromised oversight leaves citizens constitutionally stranded when their elected representatives fail to hold the executive accountable;
• c) that the current impeachment processes have become political rituals rather than genuine tools for accountability. Through the proposal to introduce a citizen-initiated recall, the petitioner seeks to provide a direct democratic remedy when leadership grossly violates the Constitution, bypassing purely political processes; and
• d) to affirm Article 1 of the Constitution by ensuring that all sovereign power remains with the people.The petitioner argues that no public office, democratic accountability.

5. Consequently, the petitioner prayed that the Senate intervenes by way of enacting a legislation thatprovides alegalframeworkthatprovidesfor—

• a) recall of the President by citizens through a defined citizen initiative when it deemsnecessary;
• b) recallof GovernorsbycitizenswhereCountyAssembliesandSenateare compromised;

10. C clear thresholds for citizen signatures and verification by the IEBC or a similarconstitutionalbody;

• d) safeguardsagainstabusewhilepreservingthesupremacyofthepeople's will;

12. affirmation of the principle that no public office, including the Presidency and Governorship,isimmunefrom direct democratic accountability;and

• f) any other orders or recommendations it deems fit to restore,protect, and strengthen constitutional governance and people's sovereignty.

6. Pursuant to Standing Order 238(1), the Speaker committed the Petition to the Standing Committee on Justice, Legal Affairs and Human Rights for consideration. 15. 7.A copy of the Petition is attached to this Report as Annex 2.

CHAPTERTWO:STAKEHOLDERSUBMISSIONS

2.1Introduction

8. Upon committal of the Petition, the Committee met with the Petitioner on Tuesday, 24th February, 2026, whereupon he took Members through the background, rationale and justification for the proposed legislation. 9. The Committeefurtherinvited and receivedsubmissions on thePetitionfrom-

• a) The Office of the Attorney General and Department of Justice (AG)
• b) The Independent Electoral and Boundaries Commission (IEBC)
• c) The Kenya Law Reform Commission (KLRC)
• d) The County Assemblies Forum (CAF).

10. The submissions by the said stakeholders are set out in the section below, while copies ofthe submissionsare attached to thisReport asAnnex3.

2.2The Office of theAttorney General

• 11.The AG observed that, while Article 1(1) vests all sovereign power in the people of Kenya, and Article 1(2) provides that the people may exercise this sovereign power either directly or through their democratically elected representatives, these provisions must be read together with Article 1(3) which delegates the exercise of sovereign power to Parliament, the National Executive, the Judiciary, County Governments and Constitutional Commissions. Consequently, it is within this structured delegation that any recall mechanism must be designed.
• 12.The AG submitted that the Constitution provides for the removal of the President under Article 144 on the grounds of incapacity or by impeachment under Article 145,whereas removal of the Governor is provided for under Article 181(1) and (2) and section 33 of the County Governments Act. They highlighted the decision of theHighCourtinInstituteforSocial Accountability&Anotherv.National Assembly & 4 Others (2015) eKLR,where the Court held that Parliament is not at libertytocreateremovalorrecallprocessesthateither contradictorundermine the constitutionallyprescribed removal procedure.

• 13.TheStakeholderfurther submitted that,inthecaseofDavidNdii&Others v. Attorney General & Others(2021)eKLR the Courts affirmed that fundamental changestotheconstitutional architecturerequire thepeople'sdirectparticipation through a referendum. Thus, any proposal to introduce citizen-initiated recall of thePresidenttouchesthearchitectureofexecutive accountabilityenshrined in Chapter Nine of the Constitution and would require a referendum under Article 255(1)(f).
• 14.TheStakeholder added that enactment of acitizen-initiatedrecall mechanismfor thePresidentwithoutaconstitutionalamendmentwouldbeunconstitutional as Article 142,as read together with Article 255(1)(f),calls for a referendum and that astatutoryrecallmechanism thateffectivelytruncatesthePresidentialterm without a referendumwouldviolate thisprovision.

15. With regard to the procedure for removal of a county governor, the AG submitted that thelegalframeworksetoutin theCountyGovernmentsActis elaborate and there is noneedforenactmentofa newlawtodeal withthesame subject matter.

2.3 The Independent Electoral and Boundaries Commission (IEBC)

16. The IEBC submitted that although it is not directly involved in the impeachment 2. 17.TheIEBC submitted that the Constitution gives the electorate the right to recall their representatives in both Houses under Article 104 and noted that omitting members of the County Assembly from recall through the Constitution was an oversight. 3. 18.The Stakeholder further submitted that Article 80 read together with Article 194 requiresParliamenttoenactlegislationwhichprovidesforcircumstancesunder which a member of county assembly may be removed from office. However, Parliament has not enacted the necessary legislation. 4. 19.The Stakeholder further added that section 45-48 of the Elections Act provide for recall of Members of Parliament whereas section 27-28 in the County Governments Act, 2012 provide for recall of Members of County Assemblies.

• 20.IEBC was in agreement with the petitioner that Kenya's impeachment framework lacks a recall mechanismfor executive offices,thus citizens donot have direct democratic recourse for removing a President or County Governor between elections.

21. The Stakeholder further submitted that multiplicity of legal instruments governing impeachment creates inconsistencies in procedure and interpretation and that political interest at both county and national levels often overshadow legal considerations.

• 22.The Stakeholder added that political party interests at both levels of government and jurisprudence have highlighted procedural deficiencies, reinforcing the need for a harmonized legislative provision to guide impeachment processes.

23. IEBC submitted that the right to recall remains unimplemented, despite constitutional timelines and previous recall provisions in the Elections Act having beendeclared unconstitutionalin theHighCourtCaseinKatibaInstitute& Another v Attorney General & Another (2017).

• 24.The Stakeholder further submitted that the only constitutionally available removal mechanismfor theexecutiveofficesof CountyGovernor and Presidentis impeachment, which they termed as the functional equivalent of recall for these two executive positions.

25. IEBC submitted that the constitution design deliberately limits the mechanisms through which a sitting President may be removed from office and that any attempt by Parliament to provide for the recall of the President would be inconsistent with the provision under Article 2.

• 26.IEBC alluded to the High Court's 2025 decision in Okoiti & Others v Attorney General to reinforce the importance of procedural fairness and observance of due process in impeachment proceedings, recognizing that impeachment is both a legal and political process requiring strict adherence to constitutional safeguards.

27. IEBC proposed that Parliament needs to enact a comprehensive impeachment and recall statute consolidating existing provisions and clarifying procedural steps for both national and county executives. 2. 28.The Stakeholder further proposed that the statute should include uniform timelines, due process guarantees, intensify civil education to help citizens differentiate between impeachment and recall, and to promote public understandingofconstitutional accountabilitymechanisms.

2.4TheKenya LawReform Commission (KLRC)

29. KLRC submitted that Article 1 of the Constitution provides that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution,either directly or through democratically elected representatives and Article 2 affirms the supremacy of the Constitution and renders void any law inconsistent with it. 2. 30.KLRCsubmitted that theConstitutiondoesnotprescribe anexhaustiveprocedure for the removal of Governors and instead,creates alegislative spacewithinwhich Parliament may design appropriate mechanism. 3. 31.KLRCsubmittedthattheConstitutionestablishesaclosedandexhaustive frameworkforthetenureandremovalofthePresidentandoutlinestheinstances underwhichtheOfficeof thePresidentmaybecomevacantunderArticles142146. 32. The Stakeholder further submitted that the Constitutional framework governing the removal of County Governors is prescribed under Article 181(1); and subsection (2) through which Parliament enacted the County Governments Act, Cap. 265 which provides for removal of Governors through impeachment under section33. 5. 33.KLRCsubmittedthatParliamentlacksthelegislativecompetencetoenactalaw providing for the citizen-initiated recall of a President and may only introduce such amechanismthroughaconstitutionalamendmentinaccordancewiththe procedures set out under Articled 255-257 of the Constitution.

34. KLRC proposed that Parliament may consider amending the County Governments Act, Cap. 265 to provide for a framework on citizen-initiated recall of County Governors, subject to appropriate policy considerations and safeguards toensure-

• a) protection against abuse and undue politicization;
• b) fiscal prudence in line with Article 201 of the Constitution; and

4. consistency with the principles of good governance, accountability and public participation.

2.5 County Assemblies Forum (CAF)

35. CAF affirmed that the Constitution of Kenya already provides structured and deliberate mechanisms for the removal of executive office holders, including the President under Article 145 and County Governors under Article 181 and that these mechanisms are intended to balance accountability with stability in governance. 2. 36.TheStakeholderfurthersubmittedthattheinvolvementof theselegislative institutions is a deliberate constitutional safeguard ensuring that removal from high office is subjected to institutional scrutiny, public accountability and due process. 37. CAF added that any legal reform concerning executive removal must complement and not diminish the constitutional mandate of Senators and Members of County Assemblies as representatives of the people. 4. 38.The CAF submitted that the Senate and County Assemblies serve as an essential buffering role against political instability and that their involvement in removal processes ensures that accusations against the Executive are interrogated through a structured and deliberative process rather than through unmediated political mobilization. 5. 39.CAF rejected any framework or narrative that treats the Senate and County Assemblies as bodies to be bypassed on the assumption that they are compromised by default. The Stakeholder added that where allegations of compromise are made

against constitutional institutions, those allegations must be supported by specific and substantive evidence demonstrating illegality, bad faith, or systemic failure.

• 40.TheStakeholder further submitted thatfailure of some impeachment processes to result in removal does not demonstrateinadequacy,but rather reflects the operation of constitutional safeguards requiring proof and due process.
• 41.CAF submitted that a direct citizen-initiated recall framework, if not carefully designed, may expose the offices of the President and County Governors to incessant agitation, political harassment and destabilizing recall attempts, particularlyinhighlypolarized politicized environment.
• 42.TheStakeholderfurther submitted that should theCommitteeconsider the progression of the proposal by the petitioner, the legal architecture must preserve the dignity, authority and constitutional role of Senators and MCAs in the accountability chain.

43. CAF proposed that such a framework should not provide for automatic removal upon presentation of a petition by citizens, rather, any citizen-led process should only operate as a formal trigger for an institutional, evidence-based inquiry conductedwithinaconstitutionalandstatutoryframeworkthatrespectsthe oversightroleofParliament and CountyAssemblies. 44. CAF added that any recall framework must be based on clear, specific, and legally recognizable grounds,supported byverifiable evidence of misconduct,violation of the Constitution,abuse of office,gross misconduct,or other recognized constitutional thresholds. The law should incorporate robust safeguards against misuseoftherecallprocessforpoliticalvendetta,orharassmentofelectedoffice holders. 45. The stakeholder recommended that the law should expressly preserve the constitutional oversight and accountability role of the Senate and County AssembliesandshouldnotreducetheSenatorsandMCAstopassivespectators in a process connected to their representative mandate.

• 46.CAF proposed that the Committee should reject any legislative framing that assumesParliamentorCountyAssembliesarecompromisedbydefault.CAF's position is that any reform should strengthen institutions, not delegitimize them.
• 47.The Stakeholder further proposed that the existing accountability mechanisms be strengthened, including public participation in oversight processes, transparency in impeachment proceedings, and civic education on the constitutional thresholds for removal from office, before resorting to the creation of a wholly new recall regime

2.6General CommentsbyStakeholders

• 48.The CAF commended the petitioner's effort to contribute to national discourse on democratic accountability but expressed a strong concern with the petition's broad suggestion that legislative bodies are compromised.

49. CAF submitted that the Senate and CountyAssemblies are elected and constituted bodies that exercise delegated sovereign power on behalf of the people with their legislative, representative and oversight functions constitutionally protected and that they areindispensableto themaintenanceof democratic accountability.

• 50.IEBC noted that the Constitution establishes a clear and operational removal mechanism for executive offices through impeachment, but recall for Members of ParliamentunderArticle104remainsdormantbecauseenablinglegislationhas not been enacted despite prior statutory attempts being invalidated by the High Court.
• 51.The Stakeholder submitted that this duality has produced accountability asymmetryinwhichpeopleretain anindirectrolein theremoval of thePresident and County Governors through their legislative representatives; undermining realization of Article 1, which vests sovereign power in the people and envisions both direct and indirect exercise of that power.
• 52.IEBC called for the re-evaluation of the current removal architecture to ensure that executive accountability aligns with democratic principles, strengthens public trust and gives meaningful effect to the sovereign authority of the "mwananchi".

CHAPTERTHREE:COMMITTEEOBSERVATIONS

3.1CommitteeObservations

• 53.Having considered the subject Petition and the submissions received thereon, the Standing Committee on Justice, Legal Affairs and Human Rights observed that-
• a) ThePresidentmayberemovedfromofficeunderArticle144of the Constitution on grounds on incapacity or by impeachment under Article 145. The grounds for impeachment are set out at Article 145 and include gross violation of the Constitution or any other law, committing a crime under national or international law, or gross misconduct. The procedure to be followed in each instanceissetoutin the Constitution.
• b) Likewise, a County Governormay be removed from office under Article181 of the Constitution on the grounds of gross violation of the Constitution, committinga crimeundernationalorinternationallaw,abuseofoffice or gross misconduct, or physical or mental incapacity to perform thefunctions of office ofcountygovernor.Article181 delegatestoParliament therole of enacting legislation on the procedure for removal of a governor, which procedureis setout at section33of theCounty GovernmentsAct,Cap.265 oftheLaw ofKenya.
• c) TheConstitution thereforeestablishesanexhaustiveand closedframework for the tenure andremoval ofthePresident and outlines theinstances under which the Officeof thePresident maybecomevacant underArticles142146. That being the case, Parliament lacks the legislative competence to enact alawprovidingfor citizen-initiated recall of aPresident.Such a mechanism may only be introduced through a Constitutional amendment in accordancewiththeproceduressetoutunderArticles255to257of the Constitution.
• d) InInstituteforSocialAccountability&Anotherv.NationalAssembly&4 Others (2015) eKLR,the High Court held that Parliament is not at liberty to createremovalorrecallprocessesthateithercontradictorunderminethe constitutionallyprescribedremovalprocedure.

• e The proposal to introduce citizen-initiated recall of the President touches on the architecture of executive accountability enshrined in Chapter Nine of the Constitution and would require a referendum under Article 255(1)(f).
• While Article 1(1) of the Constitution vests all sovereign power in the people of Kenya, and Article 1(2) provides that the people may exercise this representatives, these provisions must be read together with Article 1(3) which delegates the exercise of sovereign power to Parliament, the National Executive, the Judiciary, County Governments and Constitutional Commissions. Consequently, it is within this structured delegation framework that any recall mechanism must be designed.
• g) The involvement of Parliament and the county assemblies in the removal procedures for the President and county governors is a deliberate constitutional safeguard ensuring that removal from high office is subjected toinstitutional scrutiny,public accountability and due process.
• 54.Thus, while acknowledging that the issues raised in the Petition were weighty and inthepublicinterest,theCommitteeobserved thattheproposaltoenacta legislative framework for citizen-initiated recall of the President or a county governor would contradict or undermine the constitutionally prescribed removal procedures, and would further need to be subjected to the Kenyan people through areferendum.
• 55.The Committee further observed that theReferendumBill,2026(SenateBills No. 3 of 2026)whichseekstoputinplacethelegislativeframeworkfor theconduct of a referendum in Kenya is currently under consideration by the Senate.

CHAPTERFOUR:RECOMMENDATION

4.1CommitteeRecommendation

56. Arising from its Observations as set out in the preceding Chapter, the Standing Committee on Justice, Legal Affairs and Human Rights -

Inresponse to thePrayer that theSenate enactslegislationtoprovidefor therecall of the President or a County Governor through a citizen initiative, the Committee found that the proposed legislation would contradict and undermine the constitutionally prescribed removal procedures for the two offices, and recommendsthatitberejectedbytheSenate.

LISTOFANNEXES

| Annexl: | Minutes of the Committeein considering thePetition | |-----------|------------------------------------------------------| | Annex2: | Copy of the Petition | | Annex3: | Submissions received in response to thePetition |

Annex 1: Minutes of the Committee in considering the Petition

13T!IPARLIAMENT|5T"SESSION

MINUTESOFTHE265TISITTINGOFTHESTANDINGCOMMITTEE ON JUSTICE,LEGAL AFFAIRS AND HUMAN RIGHTS HELD ON TUESDAY 24TFEBRUARY,2026AT8:00A.M.VIRTUALLYONTHEZOOMONLINE MEETINGPLATFORM

PRESENT

1. Sen. Wakili Hillary Sigei, CBS, MP - Chairperson (Chairing)

• 2.

• Sen. Veronica W. Maina, CBS, MP -Vice-chairperson

3. Sen.Andrew Omtatah Okoiti,MP

• -Member

• 4.

• Sen. Daniel Kitonga Maanzo, EBS, MP

• -Member

5. Sen. Crystal Kegehi Asige, MP

• -Member

• 6.

• Sen. (Prof.) Tom Ojienda, SC, MP -Member

ABSENTWITHAPOLOGY

• 1.Sen. Karen Njeri Nyamu, MP

-Member

• 2.Sen.Raphael Chimera Mwinzagu, MP -Member

SECRETARIAT

• 1.Mr. Charles Munyua

-Principal Clerk Assistant II

2. Mr.BonifaceKiambi

-Senior ClerkAssistant

3. Ms. Faith Wangui

• Legal Counsel II

4. Ms.Angela Bonaya

-Clerk Assistant II (Taking Minutes)

5. Ms. Linet Aseka

• Research Officer III

6. Mr. Josphat Ngeno

-MediaRelations Officer

7. Ms.Rosebella Ngesa

-Public Communications Officer

8. Mr.Zenton Williams

-Audio Officer

9. Ms. Anne Kigoro

• Pupil

INATTENDANCE

• 1.Mr. Laban Omusundi

-Petitioner

MIN.NO.849/2026

PRELIMINARIES

Themeetingwascalledtoorder at twentyminutespasteight O'clock and openedwith a word of Prayer.

MIN.NO.850/2026

ADOPTIONOFTHEAGENDA

The Agenda of the meeting was adoptcd having bcen proposed by Sen. Crystal Kegchi Asige, MP and seconded by Sen. Danicl Kitonga Maanzo, EBS, MP.

MIN.NO.851/2026

CONFIRMATIONOFMINUTES

• a) The Minutes of the 26o"h Sitting were confirmed as a true record of proceedings having becn proposed by Sen. Daniel Kitonga Maanzo, EBS, MP and Sen. AndrewOmtatah Okoiti,MP.
• b) TheMinutesof the26isSittingwere confirmed asa truerecordofproceedings having been proposed by Sen. Crystal Kegehi Asige, MP and Sen. Andrew Omtatah Okoiti,MP.

3. TheMinutesof the262ndSittingwereconfirmed as a truerecordofproceedings having been proposed by Sen. Daniel Kitonga Maanzo, EBS, MP and Sen. Crystal Kegehi Asige, MP.

• d) TheMinutes of the 263rdSittingwere confirmed as a true recordofproceedings having been proposed by Sen. (Prof.) Tom Ojienda, SC, MP and seconded by Sen. Daniel Kitonga Maanzo,EBS, MP.
• c) TheMinutes of the264thSittingwere confirmcd asa truerccord ofproceedings having bcen proposcd by Sen. (Prof.) Tom Ojicnda, SC, MP and Sen. Danicl Kitonga Maanzo,EBS,MP.

MIN.NO.852/2026 MATTERSARISING

Under Min. No. 837/2026 - The Constitution of Kenya (Amendment) (No. 2) Bill, 2025 (Senate Bills No. 16of2025)

Members wereinformed that-

• a) theSecretariat had sincewritten tokey stakeholdcrs invitingwrittenmcmoranda on the Bill;
• b) a briefwith a case study onhow other countrics achievebalancein gender representation had been prepared and was scheduled for consideration at the next meeting; and

3. theParliamentaryBudget Officewasintheprocess ofworking on thecost implications of the proposed amendments for consideration by the Committec.

MIN.NO.853/2026

PETITION BY MR. LABAN OMUSUNDI REGARDING THE ENACTMENT OF A LEGAL FRAMEWORKTOPROVIDEFORRECALLOFTHE PRESIDENTANDGOVERNORSTHROUGHA CITIZENINITIATIVE

The Committee mct with thc Pctitioncr, Mr. Laban Omusundi who took Members through therationale and justification for the proposcd law.

During deliberations,Mcmbcrs-

• i) noted that thcproposals in the Petition rcquircd a constitutional amendment through arefcrendum pursuant toArticle 255of theConstitutionas they touch on the sovereignty of the pcople, thc term of office of the President as well as the functionsofParliament.

2. ii obscrved that Articles 145 and 181 of the Constitution already provided for the impeachment of the President and the removal of governors,respectively,and that where citizens perceived Parliament and the County Assemblies of being compromised in discharging this mandate,they could recall their respective Members ofParliament throughArticle104. 3. iii) recomimendedthatacomparativestudybeconductedoncountrieswith presidential systems that had similar citizen-driven recall mechanisms.

Thereupon,the Committeeresolved that theSecretariat-

• a) conducts acomparative studyonsimilarpracticesincountrieswithapresidential systemofgovernmentforconsiderationbytheCommittee;and
• b) invites written comments on thePetition fromconstitutional commissions, independentofficesandotherrelevantstakeholders.

MIN.NO.854/2026 ADJOURNMENT

The Chairperson adjourned the meeting at fifteen minutes past nine O'clock. The next meeting will be held on Thursday, 26th February, 2026 at 8.00 a.m.

SIGNED:....

Q:9Q·MQ

DATE:.

13TPARLIAMENT|5TIISESSION

MINUTESOFTHE272NDSITTINGOFTHESTANDINGCOMMITTEEON JUSTICE,LEGALAFFAIRSANDHUMANRIGHTSHELDONTUESDAY 17TH MARCH, 2026 AT 8:00 A.M.ON THE ZOOM ONLINE MEETING PLATFORM

PRESENT

• 1.

• Sen.DanielKitongaMaanzo,EBS,MP -Member (Chairing)

2. Sen.AndrewOmtatahOkoiti,MP -Member

3. Sen. Crystal Kegehi Asige, MP

• -Member

4. Sen.(Prof.) Tom Ojienda,SC, MP

• -Member

5. Sen.Raphael Chimera Mwinzagu,MP -Member

ABSENTWITHAPOLOGY

• 1.

• Sen.Wakili Hillary Sigei,CBS,MP - Chairperson

• 2.

• Sen.Veronica W.Maina,CBS,MP - Vice-Chairperson

3. Sen. Karen Njeri Nyamu, MP -Member

SECRETARIAT

1. Mr.Boniface Kiambi -SeniorClerkAssistant(TakingMinutes)

2. Ms. Faith Wangui - Legal Counsel II

3. Ms.AngelaBonaya - Clerk Assistant III

4. Mr.Jackson Matheshe -Research Officer III

5. Mr. Josphat Ngeno -MediaRelationsOfficer

6. Ms.RosebellaNgesa -Public Communications Officer

7. Mr.ZentonWilliams -Audio Officer

8. Ms. Anne Kigoro - Pupil

MIN.NO.883/2026 PRELIMINARIES

The meetingwas called to order at seven minutes past eight O'clock and openedwith a word of Prayer.

MIN. NO.884/2026

ADOPTIONOFTHEAGENDA

The Agenda of the meeting was adopted having been proposed by Sen. (Prof.) Tom Ojienda, SC, MP and seconded by Sen.Andrew Omtatah Okoiti, MP.

MIN.NO.885/2026 CONFIRMATION OF MINUTES OF PREVIOUS

SITTINGS

• a) The Minutes of the 268h Sitting werc confirmcd as thc truc rccord of the proccedings having bcen proposcd by Sen. Andrew Omtatah Okoiti, MP and seconded bySen.(Prof.)Tom Ojicnda,SC,MP.
• b) The Minutes of the 269h Sitting were confirmcd as thc truc rccord of thc proceedings having becn proposed by Scn. Crystal Kegchi Asigc,MP and sccondcd bySen.AndrewOmtatah Okoiti,MP.

MIN.NO.886/2026

PETITIONBY MR. LABAN OMUSUNDI REGARDING THE ENACTMENT OF A LEGAL FRAMEWORK TO PROVIDE FOR RECALL OF THEPRESIDENTANDGOVERNORSTHROUGHA CITIZENINITIATIVE

The Committce resumed its consideration of the captioncd Pctition and was takcn through a rescarch Brief analyzing impcachment and rccall mechanisms in comparative jurisdictions,highlighting thenccd for a constitutional framcwork to cnsurc democratic accountability while cxploring the implications of rccall thresholds.

Members took note of the Bricf and obscrvcd that ovcrly high or low thrcsholds for removal from office could lcad topolitical instability or render the recall mcchanism incffective.

Thereupon, thc Committce noted that it had invited submissions on the Petition from selcctcd stakcholdcrs and resolvcd to await reccipt of and to considcr thc said submissions beforc procccding to prcpare its Report on thePctition.

MIN.NO.887/2026

ADJOURNMENT

The Chairperson adjoumed the mccting at twenty fivc minutes past nine O'clock.The next mccting will be hcld on Thursday,19hMarch,2026 at 8.00 a.m.

mmmmae

SIGNED:

Q3.06.2026

DATE:.

13TIIPARLIAMENT|5THSESSION

MINUTESOFTHE286TSITTINGOFTHESTANDINGCOMMITTEEON JUSTICE,LEGALAFFAIRSANDHUMANRIGHTSHELDONTHURSDAY 14TH MAY,2026 AT 8:00 A.M.ON THE ZOOM ONLINE MEETING PLATFORM

PRESENT

1. Sen. Wakili Hillary Sigei, CBS, MP

• Chairperson

2. Sen.RaphaelChimeraMwinzagu,MP

-Member

• 3.

• Sen. Crystal Kegehi Asige, MP

-Member

4. Sen.DanielKitongaMaanzo,EBS,MP

-Member

• 5.

• Sen. (Prof.) Tom Ojienda, SC, MP

-Member

ABSENTWITHAPOLOGY

1. Sen.VeronicaW.Maina,CBS,MP

-Vice-chairperson

2. Sen.Karen Njeri Nyamu, MP

-Member

3. Sen.Andrew Omtatah Okoiti,MP

-Member

SECRETARIAT

1. Mr.Charles Munyua

-Principal Clerk Assistant II

2. Mr.BonifaceKiambi

-Senior ClerkAssistant(TakingMinutes)

3. Ms. Faith Wangui

• Legal Counsel II

4. Mr. Malcolm Ngugi

• Legal Counsel II

5. Ms.AngelaBonaya

• Clerk Assistant III

6. Mr.JacksonMatheshe

-Research Officer III

• 7.

• Ms. Linet Aseka

-Research Officer III

• 8.

• Mr. Josphat Ngeno

-Media Relations Officer

9. Mr. John Lekampule

• Serjeant at Arms

10. Mr. Zenton Williams

-Audio Officer

11. Ms. Anne Kigoro

• Pupil

• 12.

• Ms. Natalie Amu

-Attachee

MIN.NO.951/2026 PRELIMINARIES

The meeting was called to order at seventeen minutes past eight O'clock and opened withawordofPrayer.

MIN.NO.952/2026

ADOPTIONOFTHEAGENDA

The Agenda of thc mccting was adoptcd having bccn proposcd by Sen.Raphael Chimera Mwinzagu,MP and scconded Sen.Danicl Kitonga Maanzo,EBS,MP.

| MIN.NO.953/2026 | PETITION BY MR. LABAN OMUSUNDI REGARDING THE ENACTMENT OF A LEGAL | |-------------------|---------------------------------------------------------------------|

The Committee resumed consideration of the captioned Petition and was taken through the draft Report. Members deliberated on and concurred with the proposed Committee Observations and Recommendation as set out at Chapters Three and Four of theReport, respectively.

Thereupon, the Report on the Petition was adopted having been proposed by Sen. Daniel Maanzo,EBS,MP and seconded bySen.Crystal Asige,MP.

MIN.NO.954/2026 ANYOTHERBUSINESS

• a) WorkingRetreatto Consider threeConstitutional AmendmentBillsbefore the Committee

Memberswereremindedof the Committccrctreat tobeheld on24hto28thMay,2026 inMombasa County to consider the submissions reccived on three Constitutional amendmentBillsbeforetheCommittec.

Followingdeliberations,itwasresolved that theprogramfortheretrcatbecxtendedby twoworkingdays to cnable the Committccto also considcr and adopt theRcports on the threeBillsfor tabling in theSenateupon rcsumptionfrom the shortrecess.

b) BudgetExecutionStatusforFY2025/2026

Memberswerebriefedon thebudgctcxccutionstatusfor theCommittecforFY 2025/2026,andontheneedtocommittheoutstandingbalancesahcadofthecloseof thefinancialyearinJune.

Following deliberations,it was resolved that the Committee firms up arrangements for thefollowing activities tobe held inJune-

• i) A retreat to be held on 7th to 9"h June, 2026 in Kiambu County to consider the submissionsreceived on andprepare the CommitteeReport on theReferendum Bill, 2026 (Senate Bills No. 3 of 2026);

2. ii) A retreat with the Independent Electoral and Boundaries Commission,the Office of the Registrar of Political Parties and the Judiciary Committee on Elections, to be held inNaivasha,Nakuru County,on 11h to 14h June,2026,to deliberate on electoral reforms andpreparednessfor the2027 General Elections;and

• ii)A fact-finding visit to Narok and Bomct Countics on 18"h to 21s June, 2026 to mect with stakcholdcrs to delibcratc on the Statcmcnt sought by Sen. Cathcrinc Mumma, CBS,MP regarding the criminalization and re-victimization of survivors of Female Genital Mutilation (FGM), particularly in Bomet and Narok counties.

MIN.NO.955/2026 ADJOURNMENT

Thc Chairperson adjourned thc mecting at seven minutes to ninc O'clock. Thc next mcctingwill be held on noticc.

SIGNED:..

Q3:06. Q026

DATE:......

Annex 2: Copy of the Petition

GRASSROOTC

OVERSIGHT INITIATIVE

P.OBox9759-20100Nakuru,

Tel:+254723T59625

Email:omusundi200@domail.com

22"d January 2026.

TO SENATE

3.uopm

REPUBLIC OFKENYA PARLIAMENTBUILDINGS NAIROBIKENYA

2 2·JAN 2026

lhsedar

MA

PUBLICPETITIONTOTHESENATE

INTHEENACTMENTOFALEGALFRAMEWORKTOPROVIDEFOR RECALLOFTHEPRESIDENTANDGOVERNORSTHROUGHA CITIZENINITIATIVE

A.INTRODUCTION

1. I, Laban Omusundi, a citizen of the Republic of Kenya, and an active serial constitutional petitioner, bring this Petition under the strength of Article 119(1) of the Constitution, which grants every person the right to petition Parliament to consider any matter within its authority.

B.JURISDICTIONOFTHESENATE

2. This Petition properly lies before the Senate by virtue of Article 96 of the Constitution, which mandates the Senate to represent and protect the interests of the Counties and their governments,and to participate in the oversight of State officers, including Governors, and to safeguard the sovereign power of the people exercised at both levels of government.

C.CONSTITUTIONALANDLEGALBASIS

3. This Petition is anchored on, inter alia:

INTHEENACTMENTOFALEGALFRAMEWORKTOPROVIDEFOR RECALLOFTHEPRESIDENTANDGOVERNORSTHROUGHA CITIZENINITIATIVE

Article 1 --Sovereignty of the people

Article 2-Supremacy of the Constitution

D.STATEMENTOFFACTSANDCONCERN

4. That the Constitution vests all sovereign power in the people of Kenya, exercisabledirectlyorthrough democraticallyelectedrepresentatives. 5. That the Constitution expressly provides for recall of Members of Parliament and Members of County Assemblies, but does not provide a clear, enforceable legal framework for recall of the President and Governors by the people, despite theirimmenseexecutivepowerandcontroloverpublicresources. 6. That in practice, oversight mechanisms against the President and Governors are largely dependent on political actors—namely MPs and MCAs-who are often: 4. -Compromised through patronage, appointments, and financial inducements. 5. -Subordinated through party control, intimidation, or misuse of State machinery. 6. -Rendered ineffective where political loyalty outweighs constitutional duty. 7. That impeachment processes against the President and Governors, though constitutionally provided for, have increasingly become political rituals rather than genuine accountability tools, thereby denying citizens an effective remedy where leadership grossly violates the Constitution. 8. 8.That the absence of a direct citizen-initiated recall mechanism for the President andGovernors: 9. (a) Undermines Article 1 on people's sovereignty. 10. (b) Weakens accountability and constitutionalism. 11. (c) Entrenches impunity at the highest levels of executive power. 12. (d) Contradicts democratic best practices where ultimate power rests with the people.

INTHEENACTMENTOFALEGALFRAMEWORKTOPROVIDEFOR RECALLOFTHEPRESIDENTANDGOVERNORSTHROUGHA CITIZENINITIATIVE

• 9.ThatwhereMPs arecompromised inoversightofthePresident,andMCAs are compromised in oversight of Govermors, citizens are left constitutionally stranded, with no direct democratic instrument to protect the Republic.

10. That there no effort done to address this matter for it only be addressed by Senate. It should not be disregarded on that ground. 11. That this matter is not pending in any Court or any constitutional body between theparties

F.PRAYERS/RELIEFSSOUGHT

• 12.ThePetitionerhumblyprays that theSenate:
• (A). Admits this Petition for consideration

forinitiating alegislationtoprovide aclearlegal frameworkfor:

• -Recall of the President by citizens through a defined citizen initiative when it deems necessary.
• -Recall of Governors by citizens where County.Assemblies are compromised and Senate too.
• (B) Ensures that such a framework includes:

Clear thresholds for citizen signatures.

Independent verification by the IEBC or a similar constitutional body.

• (C) Safeguards against abuse while preserving the supremacy of thepeople's will.
• M) Affirms the principle that no public office, including the Presidency and Governorship, is immune from direct democratic accountability.
• (E) Makes any other orders or recommendations it deems fit to restore, protect, and strengthen constitutional governance and people's sovereignty.

INTHEENACTMENT OFALEGALFRAMEWORKTOPROVIDEFOR RECALLOFTHEPRESIDENTAND GOVERNORSTHROUGHA CITIZENINITIATIVE

G.CONCLUSION

13. This Petition is not about political convenience, but about constitutional survival. 14. A Republic where citizens can recall MPs and MCAs but are powerless against compromised Presidents or Governors betrays the spirit of the 2010 Constitution. 15. The people of Kenya must remain the same ultimate custodians of power, not spectators to elite bargains and compromised oversight

Yours truly

Laban Omusundi

AnActiveCitizenBasedinNakuru

AndaSerialPetitioneronMatterof GovernanceofNationalimportance

1020579

Annex 3: Submissions received in response to thePetition

2 6 MAR 2026

A.SRVICES

OFFICEOFTHEATTORNEYGENERAL

OurRef:AG/LDD/1101/1/101

Mr. J.M. Nyegenye, CBS

Clerkof theSenate Clerk's Chambers Parliament Building P.OB0X41842-00100 NAIROBI.

RE:PETITIONBYMR.LABANOMUSUNDIREGARDINGTHEENACTMENTOFA PRESIDENTANDCOUNTYGOVERNORS

23"d March, 2026

This is in reference to your letter under Ref. No. SEN/DGAC/DGC/JLAHRC/2026/3(a) dated 6th March,2026 forwarding the Petition by Mr.Laban Omusundi regarding the enactmentofalegal frameworktoprovideforcitizeninitiatedrecall of thePresident and County Governors, for our consideration and comments prior to consideration and reportingto theHouseby theStandingCommitteeon Justice,Legal Affairsand Human Rights.

Following our review of the Petition with respect to the Constitution and the County Governments Act (Cap.265) as well as relevant decided cases, we hereby provide the following observations and advice for the consideration of the Standing Committee:

1. Sovereignty of the People -Article 1 of the Constitution

Article 1(1) of the Constitution vests all sovereign power in the people of Kenya. Article1(2) provides that the people may exercise this sovereignpower either directly orthroughtheirdemocraticallyelectedrepresentatives.Thesupremacyof the people's sovereignty is the basis in which all government authority is derived and exercised.

While thePetitioncorrectly anchors its premise on Article 1(2),it must be read together with Article 1(3), which delegates the exercise of sovereign power to Parliament, the National Executive,the Judiciary,County Governments and

STATELAW OFFICE

P.O.BoX40112-00100,NAIROBI,KENYA.TEL:+25420 2227460/0700072929/0732529995

SHERIAHOUSE,HARAMBEEAVENUE

STATEDEPARTMENTFORJUSTICE

ConstitutionalCommissions.Itiswithinthisstructureddelegationthatanyrecall mechanism mustbe designed.

2.Under the Constitution,President mayberemoved:

• (a)under Article 144 on the grounds of incapacity; or
• (b)byimpeachmentunderArticle145.

Under Article 144 on the grounds of incapacity, a member of the National Assembly, supportedbyatleastaquarterofallthemembers,maymoveamotionforthe office. If that motion is supported by a majority of all members, then the speaker can inform the country's Chief Justice of the resolution within two days.After receiving notice of theresolution,the ChiefJusticeorDeputy Chief Justicehas seven days to appoint a special tribunal to investigate the matter. If the tribunal concludes that the Presidentdoesn'thavethecapacitytoperform thefunctionsofhisorheroffice,the NationalAssemblymustvoteonwhethertoratifythereport.If themajorityvoteto ratifythereport,thiswillautomaticallyresultinthePresident'sremovalfromoffice. The report of the tribunal is considered final and is not subject to appeal.

UnderArticle145of theConstitution,amemberof theNationalAssemblymaymove a motion to impeach a sitting president on the following grounds--

• (a)gross violation of a provision of the Constitution or of any other law;
• (b)wherethereareseriousreasonsforbelievingthatthePresidenthas committedacrimeundernationalorinternational law;or
• (c)forgrossmisconduct.

If the motion to impeach thePresident is supported by at least two-thirds of all the membersoftheNationalAssembly,thespeakerthentransmitstheresolutionto the speakeroftheSenatewithintwodays.Withinsevendaysofreceivingthenoticeof theimpeachmentresolutionfromthespeakeroftheNationalAssembly,thespeaker of theSenatemust calla sitting tohear and investigate thechargesagainstthe President.

The Senate may pass a resolution to appoint a special committee, which is made up of eleven of its members, to investigate the charges against the President.The President shall have right to appear before the special committee during investigations. If the special committee determines andreports to theSenate that the particulars of any allegationagainst thePresident

• (a)havenotbeensubstantiated,furtherproceedingsshall notbetakenunder Article145inrespectofthatallegation;or
• (b)havebeensubstantiated,theSenateshall,after according thePresident an opportunity to be heard,vote on the impeachment charges.

If at least two-thirds of the members of the Senatevote in favour of upholding any of the impeachment charges, the President's mandate will be terminated.

• 3.Similarly,removalofa governorisapowervested inthepeoplebutexercised through elected representatives,i.e.membersof theCountyAssembly.Article181 provides for removal of a county governor on any of thefollowing grounds-
• (a) gross violation of the Constitution or any other law;
• (b)where there are serious reasons for believing that the county governor has committedacrimeundernationalorinternational law;
• (c)abuse ofoffice orgrossmisconduct;or
• (d) physical or mental incapacity to perform the functions of office of county governor.
• 4.Article181(2)providesthatParliamentshallenactlegislationtogiveeffect tothe provisions on removal of a county governor. Section 33.of the County Governments Act provides for removal of a governor which is initiated by member of the county. assembly by notice to the speaker, supported by at least a third of all the members. The motion must be supported by at least two-thirds of all the:members of the county assembly. The speaker of the county assembly shall inform the Speaker of the Senate of that resolution within two days. Within seven days after receiving notice of a resolution from the speaker of the county assembly-
• (a) theSpeaker of the Senate shall convene a meeting of the Senate to hear charges against the governor; and
• (b) the Senate, by resolution, may appoint a special committee comprising eleven ofitsmemberstoinvestigatethematter.

5.Court decisions

• (a) Institute forSocial Accountability & Another v.National Assembly & 4 Others [2015]eKLR

Petition No. 71 of 2014, High Court of Kenya (three-judge bench: Mumbi Ngugi, Odunga andMakauJJ).Thecourtheld that:-

"Parliamentis notat libertytocreateremoval orrecallprocesses thateither contradictorunderminetheconstitutionallyprescribedremovalprocedure."

(b)DavidNdii&Othersv.AttorneyGeneral&Others[2021]eKLR

PetitionNos.E282,E397&E394of 2021(consolidated),HighCourt ofKenya (Constitutional and HumanRights Division).The court held, affirmed on appeal, thatfundamentalchangestotheconstitutionalarchitecturerequirethepeople's directparticipation throughareferendum.Thecourtdrewa distinctionbetween constitutionalamendmentsthroughParliamentaryinitiativeorthrougha referendum.

Anyproposal tointroducecitizeninitiatedrecallof thePresident touchesthe architectureofexecutiveaccountabilityenshrinedinChapterNineofthe Constitution. This would constitute a primary constitutional amendment requiring a referendumunderArticle255(1)(f),whichprotectsprovisionson thetermof officeandfunctionsofthePresident.

• 6.Thefundamental legalquestionraisedby thePetitioniswhetherParliamenthasthe mandatetoenact a lawprovidingforcitizen-initiatedrecallof thePresident.
• 7.Article255(1)of theConstitutionprovides that abill to amend theConstitutionwhich relatesto,amongothers,thetermofofficeof thePresident(Article255(1)(f)mustbe subjecttoareferendum.Article142providesthatthePresidentshallholdofficefora termbeginningwhenthePresidentis swornin andendingwhen thepersonnext elected asPresidentisswornin.

Itisourconsideredviewthattheenactmentofacitizeninitiatedrecallmechanism for thePresident,withoutaconstitutional amendment,wouldbeunconstitutionalfor thefollowingreasons-

• (a)Article 142, as read together with Article 255(1)(f),entrenches thePresident's term of office as a fundamental provision alterable only by a referendum. A statutory recallmechanismthateffectively truncates the Presidential termwithouta referendumwouldviolatethisprovision;
• (c) Articles 144 and 145 constitute a complete mechanism for the removal of the President.Parliamentcannotlegislateanadditionalorparallelremoval mechanismoutsideArticles144and145,thepositionhasbeenbuttressedinthe decidedcaseof InstituteforSocial Accountabilityv.NationalAssembly&4 Others[2015] eKLR discussed herein;
• (b) The courts in David Ndii & Others v. Attorney General (2021), protects the architecture ofexecutiveaccountability.Citizeninitiatedrecallof thePresident shallrequireanamendment totheConstitutionthroughareferendumas contemplatedbyArticle255(1)(f).
• 8.Article181(2)expresslymandatesParliamenttoenactlegislationprovidingforthe procedure for removal of a county governor. Section 33 of the County Governments Act(Cap.265)operationalisesArticle181.

The grounds for removal of a county governor is specified under Article 181(1), and Parliament cannot add new grounds for removal of a county governor beyond what the Constitution contemplates. Section 33 of the County Governments Act is explicit on the procedures for removal of a county and therefore there is currently provided justificationforenactmentof anewlegal frameworkasproposed in thePetition.

• 9.From the foregoing, it is clear that the Constitution provides an elaborate legal frameworkregardingtheremovalofthepresidentanddidnotcontemplateenactment ofanActofParliamenttodealwiththerecallofthePresident.TheConstitutionis

clearontheprocedureforremovalof apresidentanditbeingthesupremelaw,it supersedesanyotherlegislation.Whereamemberof thepublicwishestopetitionfor theremovalof thePresident,thatpersonmayexercisethatmandatethroughtheir electedrepresentativesintheNationalAssembly.

A proposal for a different legal frameworkwould requirereferendum as thiswould requireanamendmentoftheConstitutiontochangethelegalframeworkestablished in the Constitution.

• 10.On the other hand, regarding the removal of a governor, Section 33 of the County GovernmentsActoperationalizesArticle181(2)of theConstitutionasitsetsout the procedure for removal of a governor.The legal framework set out under the County GovernmentsActiselaborateandthereisnoneedforenactmentofanewlawtodeal with the same subject matter.

11. We further note that the Petition raises fundamental constitutional issues regarding the architecture of executive accountability and the realisation of the sovereignty of the people. The Policy on the subject matter, lies within the mandate of the Ministry of Interior andNational Administrationand theStateDepartmentofDevolution.To this end, we have sought policy guidance from the Ministry of Interior and National Administration and theStateDepartmentofDevolution.

We thank you and assure you of our continued support.

guwe

HON. SHADRACK J. MOSE, CBS .( SOLICITOR-GENERAL

Ref:IEBC/40/JLAC/14(4)

Mr.JeremiahM.Nyegenye,CBs Clerk of theSenate Parliament Buildings P.O. Box 41842-00100 NAIROBI

Dear

RE:

19th March,2026

Mr, Nyegerye,

PETITIONBYMR.LABANOMUSUNDIREGARDINGTHEENACTMENTOFA LEGALFRAMEWORKTOPROVIDEFORCITIZENINITIATEDRECALLOFTHE PRESIDENTANDCOUNTYGOVERNORS

The Independent Electoral and Boundaries Commission (IEBC) acknowledges receipt of your letter Ref:SEN/DGAC/DGC/JLAHRC/2026/3(b) dated 6thMarch,2026 on the above subject matter.

The Commission hereby forwards itswritten submissions on thepetition to the Standing Committee on Justice,Legal Affairs and Human Rights as directed for further courseof action.

Thank you for your continued support.

D9AC

Yours

Leng

MosesSunkuli,OGW Ag.CommissionSecretary/CEo

3

INDEPENDENT ELECTORALAND BOUNDARIES COMMISSION

THEINDEPENDENTELECTORALANDBOUNDARIESCOMMISSION

SUBMISSIONSON THEPETITIONBYMR.LABAN OMUSUNDI REGARDINGTHE ENACTMENTOFALEGALFRAMEWORKTOPROVIDEFORCITIZEN INITITATEDRECALLOF THEPRESIDENTANDCOUNTYGOVERNORS

Dated 23rd arch,2026 Independent Electoral &BoundariesCommission(IEBC) AnniversaryTowers,6thFloor,Off UniversityWay P.O. Box 45371 - 00100, Nairobi - Kenya Telephone: + 254 (0) 20 29925

I|The IEBCMemorandum on The Elections Act(Amendment) Bill,April,2025

A.INTRODUCTION

• 1.TheIndependentElectoral and Boundaries Commission(hereinafterreferred to as the Commission) is a Constitutional Commission established under Article 88 of the ConstitutionofKenya.

2. The Commission is responsible for the conduct or supervision of referenda and elections to any elective body or office established by the Constitution and any otherelectionsprescribedbyanActofParliament.

• 3.Article 88(4) (d) stipulates the mandate of the Commission to regulate the process bywhichpartiesnominatecandidatesforelection.
• 4.The Constitution ofKenya gives the electorate theright to recall their elected violationoftheConstitutionoranyotherwrittenlaw.

B.LEGALFRAMEWORKFORTHERECALL

• 5.Article 104 of the Constitution gives the electorate the right to recall their representativesintheNationalAssemblyand theSenate.
• 6.Article 80 read together with Article 194 requires Parliament to enact legislation which provides for circumstances under which a member of county assembly may beremovedfromoffice.

7. In this regard, Section 27 of the County Governments Act, 2012 provides the grounds upon which a member of county assembly may be recalled.

• 2|The IEBCMemorandum on TheElections Act(Amendment) Bi1l,April,2025
• 8.Sections28 and29outlines theprocessofarecallpetition andrecall elections after thefilingofapetitionforamember is toberecalled.
• 9.It istrite tonotethattheintentionof theConstitutionwasforParliament toenact laws to recall members of the National Assembly and Senate.Perhaps it was an oversight in omitting Members of the County Assembly in this prescription.
• 10.Nonetheless,Section45-48 of the Electionsprovidefor recallof members of Parliament whereasSection 27-28 in the County Governments Act provide for recall ofMembersofCountyAssemblies.

C.ANALYSISONTHEPROPOSALTOHAVEAFRAMEWORKFORTHERECALL OFAPRESIDENTANDCOUNTYGOVERNOR

11. Kenya's constitutional architecture places a strong emphasis on accountability, separation of powers and checks and balances in the exercise of executive authority. Although the public discourse often uses the term "recall" broadly to refer to the removalofpolitical leaders,theConstitutionprovidesrecall onlyforMembersof ParliamentunderArticle104. 12. However, even this right of recall remains unimplemented because Parliament has notenacted thenecessarylegislation,despiteconstitutional timelinesandprevious recall provisionsintheElectionsActhavingbeen declared unconstitutional in the High Court Case in Katiba Institute & Another v Attorney General & Another (2017). 13. The Constitution of Kenya only has a recall mechanism exits for National Assembly and Senate.This means that the only constitutionally available removal mechanism for theexecutive officesof County Governor andPresidentisimpeachment. 14. This situation underscores a crucial gap in Kenya's system of political accountability and highlights theimportanceofunderstanding theimpeachment architectureas thefunctional equivalentofrecallfor these twoexecutivepositions. 5. 3IThe IEBC Memorandum on The Elections Act (Amendment) Bi11,April,2025

TheCommissionobservesthat:

• (a) The constitutional design deliberately limits the mechanisms through which a sittingPresidentmayberemovedfromoffice.
• (b) These mechanisms are exhaustive and exclusive, leaving no room for the introductionofadditional removalprocedures throughordinarylegislation.
• (c)Any attemptbyParliament toenact a lawprovidingfor therecall ofthePresident would thereforebeinconsistentwith theConstitutionand invalidunderArticle2..

Accordingly,theCommissionisof theconsideredview that:

Aframeworkforthecitizen-initiatedrecallofthePresidentcannotbeintroduced through legislationandwouldrequireaconstitutional amendment.

4.2RecallofCountyGovernors

Theconstitutionalframeworkgoverning theremovalof CountyGovernors differs materiallyfromthatofthePresident.

• (a)Article181(1)sets out thegroundsfor removal of a County Governor.
• (b)Article181(2) expresslymandatesParliament toenact legislationprovidingforthe procedureofremoval.

Pursuant to this mandate,Parliament enacted the County Governments Act,Cap.265, whichprovidesforremoval of Governors through impeachment(section33).

The Commission notes that:

• (a) The Constitution does not prescribe an exhaustive procedure for the removal of Governors..
• (b) Instead,it creates a legislative space within which Parliament may design appropriate mechanisms.

Recommendation

TheCommission recommends thatParliament takes cognizance of the constitutional design governing the removal of elected executives under the Constitution of Kenya, 2010.Inparticular:

1.On theOfficeof thePresident

• 2.TheSenateisinvited tonote that theConstitution establishes an exhaustive and closed framework for the removal of the President.Consequently,Parliament lacksthelegislativecompetencetoenactalawprovidingforthecitizen-initiated recall of the President. Should such a mechanism be considered desirable, it may onlybeintroducedthroughaconstitutionalamendmentinaccordancewiththe proceduressetoutunderArticles255-257of theConstitution.

3.OntheOfficeof theCountyGovernor

ParliamentshouldfurthernotethattheConstitutionadoptsalegislativelydelegated framework in respect of the removal of County Governors, by prescribing the grounds for removal while leaving the procedural aspects to legislation.

In thisregard,theCommissionrecommends thatParliamentmayconsider amending the County Governments Act,Cap.265,to provide for a framework on citizen-initiated recall of County Governors, subject to appropriate policy considerations and safeguards toensure:

• (a)protection against abuse andunduepoliticization;
• (c) consistency with the principles of good governance, accountability, and publicparticipation.
• (b) fiscal prudence in linewithArticle201of theConstitution;and

REPUBLICOFKENYA

COUNTY ASSEMBLIES FORUM (CAF)

Email:communication@countyassembliesforum.org www.countyassembliesforum.org

CAFMEMORANDUMONTHEPETITIONCONCERNINGTHEENACTMENTOFA LEGALFRAMEWORKFORTHECITIZEN-INITIATEDRECALLOFTHEPRESIDENT ANDCOUNTYGOVERNORS

TO:

Mr. Jeremiah Nyegenye, CBS, Clerk of the Senate,Parliament of Kenya.

FROM:

TheCountyAssembliesForum.

DATE:

19thMarch2026

1.0 INTRODUCTION

COUNTY ASSEMBLIES'FORUM(CAF)

1. The CountyAssemblies Forum(CAF)isthe coordinating bodyof the 47 County Assemblies in Kenya. The primary mandate of CAF is to promote networking and synergy among the 47 County Assemblies, coordinate intergovernmental relationsand enhance and coordination of the 47 CountyAssemblies and throughpolicyand legislative action, promote a conduciveworking environmentforallitsmembers,and in thatway deliver quality services to the people. 2. As one of the key institutional pillars within Kenya's devolved system of governance, CAF remains committed tosupporting constitutionalism,accountablegovernment, democratic participation, and the protection of representative institutions established under the Constitution. 3. It isin that spirit that CAF submits this memorandum on thepetition concerning the enactment of alegal frameworkfor the citizen-initiated recall of thePresident and County constitutional mechanismsfor theremoval of holders of executive office and proposes a moredirectcitizen-drivenrecallframework.

2.0. BACKGROUND

• 2.1. The petition by Laban Omusundi is premised on the argument that the current constitutional and statutory mechanisms for the removal of the President and County Governors are insufficientbecause they substantially depend onlegislative institutions, namelyParliament andCountyAssemblies.
• 2.2. The petitioner contends that such institutions may in some instances be compromised, influenced,orotherwiseunabletoexercisetheiroversightpowerseffectively,thereby frustratingpublic accountability.
• 2.3. On thatbasis,thepetitionerseeks theestablishment of a legal framework enablingcitizens to directly initiate a recall process against thePresident and County Governors.
• 2.4. and the need to strengthen accountability, it also makes broad assertions regarding the conduct and independence of legislative institutions, including the Senate and County Assemblies, which assertions require careful scrutiny.

• COUNTYASSEMBLIES'FORUM(CAF) 2.5. In CAF's considered view, any discussion on the possible introduction of a citizen-initiated recallframeworkmustbeundertakenina manner thatrespects the architectureof the Constitution,preservesinstitutional balance,and safeguards the oversight mandateof the SenateandCountyAssemblies.

3.0.GENERALCOMMENTS.

• 3.1. The CAF acknowledges the importance of enhancing public confidence in governance and appreciates the petitioner's effort to contribute to national discourseondemocraticaccountability.
• 3.2. However, CAF expresses strong concern with the petition's broad suggestion thatlegislativebodiesaregenerallycompromisedorundulyinfluencedby the Executive.Such a characterization is overly sweeping,lacksthe necessary evidentiary precision, and risks unfairly discrediting constitutional institutions that are central toKenya's representative democracy.
• 3.3. The Senate and County Assemblies are not peripheral actors in the constitutionalorder.Theyareelectedandconstitutedbodiesthatexercise representative, and oversight functions are constitutionally protected and are indispensable to the maintenance of democratic accountability.
• 3.4. The mere fact that impeachment or removal proceedings do not always capture, or illegitimate influence. In many instances, the constitutional threshold for removal is intentionallyhigh in order to protect institutional stability,guard against abuse,and ensure that removalisgrounded on law and evidencerather thanpoliticalexpediency.
• 3.5. CAF is therefore of the view that care must be taken not toframe legislative institutions asobstacles toaccountability merelybecause they serveas constitutional filtersagainst arbitrary,populist,orinsufficiently substantiated attemptstoremoveelectedexecutivesfromoffice.
• 3.6. We further observe that rhetoric portraying Parliament and County Assemblies as inherentlyunreliablemayerodepublictrustinrepresentativeinstitutions andundermine theveryconstitutionalorderwithinwhichanyproposed reformmustbedebatedandenacted.
• 3.7. CAF appreciates the opportunity to contribute to this Bill and on the basis of theforegoingproposesthefollowingamendments:

4.0.THEFORUMVIEWS ON THEPETITION

• 4.1. CAF affirms that the Constitution of Kenya alreadyprovides structured and deliberatemechanismsfor theremoval ofexecutiveofficeholders,including thePresidentunderArticle145andCountyGovernorsunderArticle181.These mechanisms arenotaccidental;they arepartof the constitutionaldesign intended to balance accountability with stability in governance.
• 4.2. Theinvolvement of legislative institutions in thoseprocessesis neither a weakness nor a procedural inconvenience. Rather, it is a deliberate constitutional safeguard ensuring that removal from high office is subjected to institutional scrutiny,public accountability,and dueprocess.
• 4.3. SenatorsandMembers of CountyAssembliesexerciseoversight people.Anylegal reform concerning executive removal must therefore complement,and not diminish,their constitutional mandate.
• 4.4. CAF rejects any framework or narrative that treats the Senate and County Assemblies asbodies tobebypassedonthe assumption thattheyare compromised by default. Such a premise would be institutionally dangerous, constitutionally unsound, and democraticallyregressive.
• 4.5. Thepetitioner'sproposaltoamendelectorallawsbyemphasizingethnic community representation is commendable.It promotes inclusivity,diversity, and ensures thatMCAs genuinely understand and address theunique needs andchallengesoftheircommunities.
• 4.6. citizen-initiatedrecallframework.InCAF'sview,whereallegationsof compromise are made against constitutional institutions,those allegations illegality,badfaith,orsystemicfailure.General dissatisfactionwithlegislative outcomesisnotsufficientbasisforrestructuringconstitutional accountability mechanisms.
• 4.7.We concur with theposition that theConstitution should notbe treated as

though it were elastic and open to constant structural re-engineering merely because a petitioneris dissatisfiedwith theoutcome of existingconstitutional processes. Constitutional reform must be principled, evidence-based, and institutionallycoherent

• 4.8. TheSenateandCountyAssembliesserve anessentialbufferingrole against political instability. Their involvement in removal processes ensures that accusations against the Executive are interrogated through a structured and deliberative process rather than through unmediated political mobilization.
• 4.9. A direct citizen-initiated recall framework, if not carefully designed, may expose the offices of thePresident and County Governor to incessant agitation, political harassment, and destabilizing recall attempts, particularly in highly polarizedpolitical environments.
• 4.10. architecture must preserve the dignity,authority, and constitutional role of Senators andMCAsin theaccountability chain.

5.0. RECCOMENDATIONS

• 5.1. CAF recommends that the Committee approach the petition with caution and withfullregardtotheconstitutionalroleofrepresentativeinstitutions
• 5.2. ShouldtheCommitteenonethelessconsiderthedevelopmentofacitizeninitiatedrecallframework,suchaframeworkshouldnotprovidefor automatic removal upon presentation of a petition by citizens. Rather, any citizen-led process should only operate as a formal triggerfor an institutional, evidence-based inquiry conducted within a constitutional and statutory framework that respects the oversight role of Parliament and County Assemblies.
• 5.3. grounds for recall, supported by verifiable evidence of misconduct, violation of the Constitution, abuse of office, gross misconduct, or other recognised constitutionalthresholds.
• 5.4. The law should incorporate robust safeguards against misuse of the recall process for partisan contestation, political vendetta, or harassment of elected officeholders.
• 5.5. The law should expressly preserve the constitutional oversight and accountability role of the Senate and County Assemblies and should not connectedtotheirrepresentativemandate.
• 5.6. The Committee should reject any legislative framing that proceeds from the presumption that legislative compromise is the defaultcondition of Parliament or County Assemblies. Reform, if any, should strengthen institutionsrather than delegitimise them.
• 5.7. mechanisms, including public participation in oversight processes, transparency in impeachment proceedings, and civic education on the constitutional thresholds for removal from office,before resorting to the creation of a wholly new recall regime.

6.0. CONCLUSION

• 6.1. CAF appreciates the opportunity to submit its views on this petition.
• 6.2. While the petition raises important issues concerning participatory democracy and accountability, CAF maintains that any resulting legal framework must safeguard the dignity, constitutional mandate, and oversight authority of theSenate and CountyAssemblies.
• 6.3. Kenya's representative democracy depends on the integrity and proper functioning of its constitutional institutions.It is therefore imperative that reform efforts do not proceed on the basis of unsubstantiated assumptions thattheseinstitutions arecompromised ordispensable
• 6.4. CAF accordingly urges the Committee to reject any framing of the petition that undermineslegislativeinstitutionsand,if anyreformistobeconsidered,to ensure that such reform complements rather than supplants theconstitutional roleofSenatorsandMembersofCountyAssemblies.