The Independent Electoral and Boundaries Commission (IEBC) has now clarified why Kenyans currently cannot recall their MPs or Senators, despite the constitutional provision under Article 104 allowing citizens to do so.
In a detailed statement, the Commission confirmed that while it fully supports the right of voters to recall underperforming elected leaders, there is no enabling legislation in place to facilitate the recall of MPs.
The Commission explained that the MPs, in this context, means both National Assembly and Senate members cannot be legally removed by the public at this time.
“The Commission stands ready to facilitate the process without fear, favour, or hindrance,” IEBC chairperson Erastus Ethekon said.
According to Ethekon, a valid legal framework exists only for the recall of Members of County Assemblies.
In such cases, it stated that it is currently processing petitions where the statutory requirements have been met.
“The Commission is actively processing petitions for recall where validly submitted,” he said.
"But for MPs and Senators, the situation is different."
The impasse, he said, stems from a 2017 High Court decision in the case of Katiba Institute and Transform Empowerment for Action Initiative (TEAM) v Attorney General & Another.
In its ruling, the court struck down key sections of the Elections Act 2011 that outlined the grounds and procedures for recalling MPs, deeming them discriminatory and unconstitutional.
Although Parliament later amended the law to address the recall of MCAs, it failed to enact new legislation governing MPs and Senators.
As a result, he said, IEBC is unable to act on petitions for their removal, despite receiving four such applications recently.
Addressing the press recently, Ethekon confirmed it had received four petitions but stated it would be reviewed individually, “but within the limits of existing law.”
The revelation reignited public debate, especially with calls from various quarters, including the Law Society of Kenya (LSK), for urgent legislative action.
“Unfortunately, the necessary legal reconciliation was never done,” said LSK President Faith Odhiambo.
“As a result, the right has been suspended both in law and practice.”
The society has criticised Parliament for its prolonged inaction, warning that the constitutional safeguard embedded in Article 104, and by extension, the sovereignty of the people as defined in Article 1, remains unenforceable.
Hopes for a legal fix now rest on the Elections (Amendment) Bill, Senate Bill No. 29 of 2024, which is pending its second reading in the National Assembly.
The Bill aims to align the Elections Act with the court ruling by deleting the invalidated provisions, including the requirement to file recall petitions in the High Court and the discriminatory exclusions on voter eligibility to initiate recalls.
However, the LSK has raised concerns that the Bill goes further than necessary, narrowing the grounds under which an MP or Senator can be recalled.
“The disturbance of the threshold for removal is unnecessary and was not contemplated by the Court,” said Odhiambo.
“Parliament must uphold the true spirit and intent of Article 104 and Chapter Six of the Constitution on leadership and integrity.”
The IEBC reiterated that it has already submitted formal recommendations to Parliament urging it to enact a clear and constitutionally sound legal framework for recalling MPs. Until then, citizens’ hands remain tied.
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.
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