The Law Society of Kenya (LSK) has called for swift legislative intervention to restore the full implementation of the Right of Recall provision to allow citizens to remove non-performing MPs.
This constitutional safeguard, enshrined in Article 104 of the Constitution, affirms the sovereign power of the people outlined in Article 1.
However, the High Court’s 2017 decision declaring key provisions of the Elections Act unconstitutional left the recall mechanism without an effective legal framework, crippling its application.
The society has now expressed concern over the long-standing legislative inaction following the court’s ruling, saying the delay has rendered the recall clause unenforceable.
“It is unfortunate that the necessary legal reconciliation was never done, and as a result, the right has been suspended in law and practice,” said LSK President Faith Odhiambo.
Attention has now shifted to the Elections (Amendment) Bill, Senate Bill No. 29 of 2024, which is currently awaiting its second reading in the National Assembly.
While the Bill proposes deleting the invalidated sections of the Act, including the requirement for recall petitions to be filed in the High Court and provisions excluding certain voters from initiating recall, it controversially condenses the grounds under which a legislator can be removed.
“The disturbance of the threshold for removal is unnecessary and was not contemplated by the Court in its ruling,” Odhiambo argued.
This, while urging Parliament to uphold the true spirit and intent of Article 104 and Chapter 6 on leadership and integrity.
The renewed debate comes amid fresh public interest in the recall process following the reconstitution of the Independent Electoral and Boundaries Commission (IEBC).
IEBC chairperson Erastus Ethekon confirmed last weekend that they have received four petitions seeking to initiate the recall of some legislators.
He, however, stated that each of the cases would be assessed based on its merit, within the limits of existing law. In September 2024, KMK Africa Advocates LLP formally sought clarification from the IEBC on the process of recalling a Senator.
In response, IEBC Secretary Marjan Hussein cited Article 104 and the Elections Act as guiding documents but admitted that key provisions, particularly Sections 45 to 48, had been rendered inoperative by the courts.
Marjan explained that without these legal anchors, there are currently no valid grounds or procedures for recalling a legislator.
Additionally, the previous requirement to file recall petitions in court was also invalidated, leaving a vacuum in adjudication mechanisms.
