Kenyans cannot currently recall their Members of Parliament or Senators due to a lack of legislation defining the procedure, Independent Electoral and Boundaries Commission (IEBC) Chairperson Erastus Ethekon has clarified.
In a statement issued on Wednesday, July 30, Ethekon said the commission is legally unable to act on recall requests because the Elections Act 2011, which initially provided a framework, was partially invalidated by the High Court.
“There is currently no enabling legislation defining the grounds and procedures for recall. This legal gap arises from the High Court’s ruling in Katiba Institute and Transform Empowerment for Action Initiative (TEAM) v Attorney General & Another [2017] KEHC 4648 (KLR),” he explained.
According to the IEBC boss, the court found the original provisions to be discriminatory and thus unconstitutional, effectively stripping the law of clauses that governed how MPs and Senators could be removed by voters.
Although Parliament later amended the law to allow for the recall of Members of County Assemblies (MCAs), no similar provisions have been introduced for the National Assembly or Senate.
Ethekon revealed that the commission has already made formal proposals to Parliament, recommending the establishment of a legal framework to operationalise Article 104 of the Constitution, which grants citizens the right to recall elected leaders.
“We remain hopeful that this will be addressed to uphold the full spirit of Article 104,” he stated.
Ethekon’s remarks come just days after he confirmed the IEBC had received four petitions from Kenyans seeking to recall unnamed MPs. However, he reiterated that the commission cannot act on them under the current law.
“Kenyans are actively discussing this subject of recall. So we have currently received roughly four applications, and we will look at them once we get back to the office,” he said on July 19.
In contrast, the IEBC chair confirmed that the recall process for MCAs is currently active, with the commission processing several petitions under the existing statutory framework.
The latest clarification follows rising public interest in the recall process, particularly amid dissatisfaction with the performance of some elected leaders.
Despite the constitutional provision under Article 104, the legal vacuum means voters have no recourse for removing non-performing MPs or Senators until Parliament enacts a proper legal mechanism.
