Kenyans currently have no legal pathway to recall their Members of Parliament or Senators, despite the Constitution granting them that right under Article 104.
The Independent Electoral and Boundaries Commission (IEBC) has clarified that the absence of enabling legislation is what’s stopping the process.
The IEBC reaffirmed its support for the right of voters to recall underperforming elected representatives. Nevertheless, the Commission clarified that there’s no existing law to guide MPs or Senators’ recall, with no legal way in which voters can hold them accountable.
IEBC Chairperson Erastus Ethekon noted that currently, Members of County Assemblies (MCAs) are the only people who can be recalled through a procedure that is legally acceptable
“In cases where petitioners have met all legal requirements, the Commission is actively processing their recall requests,” Ethekon said.
But when it comes to lawmakers in the National Assembly or Senate, Ethekon said the law remains silent.
He traced the deadlock to a 2017 High Court ruling involving Katiba Institute and the Transform Empowerment for Action Initiative (TEAM), who had challenged sections of the Elections Act 2011. The court struck out several key provisions in defining the MPs’ recall process, deeming them unconstitutional and discriminatory.
Although Parliament later altered the law to enable recall of MCAs, it failed to enact a new law in respect of MPs and Senators. As a result, the IEBC is currently unable to act on petitions to remove legislators – even though it has received four such applications recently.
A potential solution now lies in the Elections (Amendment) Bill – Senate Bill No. 29 of 2024- which is pending its second reading in the National Assembly. The Bill seeks to align the Elections Act with the 2017 court ruling by scrapping invalid sections, including the requirement to file petitions in the High Court and unfair limits on who can initiate a recall.
The IEBC confirmed that it has already submitted formal proposals to Parliament, urging lawmakers to pass a clear, constitutionally sound recall framework for MPs.
Until that happens, the Commission says, Kenyans remain unable to use their constitutional right to recall Members of Parliament and Senators.
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