NAIROBI, Kenya – The Independent Electoral and Boundaries Commission (IEBC) has clarified that Kenyans currently cannot recall their Members of Parliament or Senators, despite a constitutional provision that grants voters the power to remove underperforming elected officials.
In a detailed statement issued Tuesday, IEBC Chairperson Erastus Ethekon said the electoral body is legally constrained from processing recall petitions against MPs due to the absence of a valid enabling law.
“While the Commission fully supports the right of voters to recall elected representatives, there is no operational legal framework for recalling Members of the National Assembly and Senate,” said Ethekon.
The revelation follows mounting public frustration and growing calls for accountability from lawmakers, particularly in the wake of recent petitions submitted to the IEBC seeking the removal of four MPs.
Ethekon confirmed the Commission had received the petitions, but said each would be reviewed “within the limits of existing law.”
Court Ruling Nullified Legal Provisions
The inability to act, the IEBC explained, stems from a 2017 High Court ruling in the case Katiba Institute & TEAM v Attorney General, which struck down key provisions of the Elections Act, 2011 that had outlined grounds and procedures for recalling MPs.
The court found those sections unconstitutional and discriminatory. While Parliament later amended the law to address the recall of Members of County Assemblies (MCAs), it has yet to enact similar legislation for MPs and Senators.
“At present, only MCAs can be legally recalled, and the Commission is actively processing such petitions where the requirements are met,” Ethekon noted.
Legal Limbo and Rising Pressure
The Law Society of Kenya (LSK) has criticized Parliament’s inaction, saying the legislative vacuum has rendered Article 104 of the Constitution — which grants voters recall powers — unenforceable.
“The right has been suspended both in law and in practice,” said LSK President Faith Odhiambo. “This undermines the sovereignty of the people as enshrined in Article 1 of the Constitution.”
Odhiambo added that Parliament’s failure to act contradicts the constitutional vision for leadership and integrity, especially under Chapter Six.
Pending Bill Offers Hope — and Concerns
There is growing hope that a pending piece of legislation could resolve the legal ambiguity.
The Elections (Amendment) Bill, Senate Bill No. 29 of 2024, seeks to align the Elections Act with the court ruling by deleting invalidated provisions and re-establishing procedures for initiating recalls.
However, the LSK has raised red flags, warning that the Bill goes beyond the court’s recommendations by narrowing the grounds under which lawmakers can be recalled.
“The disturbance of the threshold for removal is unnecessary and was not contemplated by the court,” Odhiambo said. “Parliament must uphold the true spirit of Article 104.”
IEBC Calls for Urgent Action
The IEBC has formally submitted recommendations to Parliament urging it to pass a constitutionally sound law enabling the recall of MPs.
Until then, the Commission said, voters remain unable to exercise their constitutional right to remove non-performing legislators.
In a separate correspondence from September 2024, IEBC Secretary Marjan Hussein responded to a formal inquiry from law firm KMK Africa Advocates LLP, seeking clarification on recalling a Senator.
Marjan acknowledged that while Article 104 still exists, the relevant sections of the Elections Act — specifically Sections 45 to 48 — are inoperative.
“The requirement to file recall petitions in court was also invalidated,” said Marjan, “leaving a legal vacuum with no adjudication mechanism.”
