NAIROBI, Kenya — The Independent Electoral and Boundaries Commission (IEBC) has been given one week to respond to a lawsuit accusing it of frustrating attempts to recall underperforming Members of Parliament.
Justice Chacha Mwita on Friday also directed the Attorney-General and the National Assembly to file their responses within the same seven-day window.
The petition, filed by six citizens — Newton Mugambi Boore, Dennis Mwaki Chabari, Morris Mawira, Agnes Mwende Justus, Seth Mark Kinoti, and Christine Kanana Kithinji — accuses the IEBC of violating voters’ constitutional right to hold leaders accountable by refusing to process recall petitions against MPs.
Petitioners: IEBC shielding MPs from accountability
The petitioners argue that the electoral body’s position undermines Article 104 of the Constitution, which empowers voters to remove legislators before their term ends.
They want the High Court to compel the IEBC to receive and act on such petitions using existing legal provisions.
They also accuse Parliament of failing to enact laws to operationalize MP recalls, despite a constitutional requirement under Article 104(2).
This, they say, has created a legal vacuum that shields MPs from public scrutiny while violating multiple constitutional guarantees, including the sovereignty of the people, political rights, and equality before the law.
“The refusal to process recall requests weakens public oversight and infringes on the electorate’s sovereign right to recall MPs,” the petition states.
Legal gap since 2017
The dispute traces back to a 2017 High Court ruling that struck down sections of the Elections Act outlining the recall procedure for MPs, terming them too restrictive.
Since then, the IEBC has argued it cannot act without new legislation.
In a July 30 statement, IEBC Chairperson Erastus Ethekon reaffirmed the commission’s support for the principle of recall but insisted “there is no enabling legal framework to guide the recall of MPs at present.”
The only functioning recall mechanism in Kenya currently applies to Members of County Assemblies (MCAs) under the County Governments Act, which was amended in 2020 following the 2017 ruling. No similar law has been passed for MPs.
The petitioners dispute the IEBC’s stance, claiming Article 104(1) is self-executing and does not require enabling legislation to be enforced.
They want the court to declare that the commission has a constitutional duty to receive and process MP recall petitions using the model applied to MCAs.
