NAIROBI, Kenya — The High Court has dismissed a petition seeking to compel Parliament to enact legislation providing for the recall of Members of Parliament, ruling that the case was premature because lawmakers are already considering a Bill that would establish the legal framework.
In a judgment delivered on Tuesday, Justice Roselyne Aburili held that Parliament should be allowed to complete consideration of the Elections Amendment Bill, 2024, without judicial interference.
“This petition is premature and not ripe for determination and that the petitioners, as well as the Court, should let Parliament legislate and wait for the outcome,” Justice Aburili ruled.
The court found that although Article 104 of the Constitution guarantees Kenyans the right to recall their elected representatives before the expiry of their term, the right cannot be exercised without legislation enacted by Parliament.
Justice Aburili further ruled that the Independent Electoral and Boundaries Commission (IEBC) cannot create recall procedures in the absence of an Act of Parliament.
“The constitutional right to recall is not self-executing and can only be operationalised through legislation enacted by Parliament,” the judge held.
Petition Arose From Attempt to Recall Senator
The case stemmed from efforts by seven petitioners seeking to initiate the recall of Tharaka Nithi Senator Mwenda Gataya Mo Fire over allegations of abuse of office.
On August 21, 2024, the group wrote to the IEBC requesting guidance on the legal process for recalling the senator.
However, the electoral commission responded on September 9, 2024, stating that it could not facilitate the process because it was not fully constituted at the time and there was no law providing a mechanism for recalling Members of Parliament.
Following the appointment of new IEBC commissioners, the petitioners renewed their request. The commission maintained its earlier position, prompting the group to file a constitutional petition against the IEBC, the National Assembly and the Attorney General.
Parliament Given Time to Complete Lawmaking Process
Justice Aburili’s ruling effectively gives Parliament more time to conclude consideration of the Elections Amendment Bill, 2024, which seeks to establish the legal framework governing the recall of MPs.
The proposed legislation is expected to outline the grounds upon which elected lawmakers may be recalled, the thresholds voters must meet, and the procedures the IEBC would follow in conducting a recall process.
The judgment means that although the Constitution guarantees citizens the right to recall Members of Parliament, the right remains unenforceable until Parliament passes the necessary legislation.
As a result, voters seeking to remove MPs before the end of their term currently have no legal mechanism to initiate the process.