High Court Gives Ultimatum to IEBC, Parliament on MP Recall Delays

Kenya, Aug. 11 -- The High Court in Nairobi ordered the Independent Electoral and Boundaries Commission (IEBC) and Parliament to explain within seven days why the MP recall process remains stalled, denying voters the ability to hold elected leaders accountable.

The directive, issued by Justice Chacha Mwita, follows a lawsuit by six Kenyans accusing the IEBC of violating Article 104 of the Constitution, which grants citizens the right to recall MPs.

The court rejected an immediate order to proceed with recalls, intensifying public frustration over the recall delays. The case highlights ongoing tensions over democratic accountability in Kenya's political system.

The petitioners, Newton Mugambi Boore, Dennis Mwaki Chabari, Morris Mawira, Agnes Mwende Justus, Seth Mark Kinoti, and Christine Kanana Kithinji, argue that the IEBC's refusal to process recall petitions undermines voter sovereignty and protects underperforming MPs.

The legal standoff stems from a 2017 High Court ruling in the Katiba Institute v Attorney General case, which struck down Sections 45-48 of the Elections Act as overly restrictive, leaving no clear framework for MP recalls.

While Parliament amended the County Governments Act in 2020 to enable recalls for Members of County Assemblies (MCAs), it has failed to enact similar laws for MPs, creating a legal vacuum. The petitioners seek a court order compelling the IEBC to act and mandating Parliament to pass recall legislation within 90 days.

Public discontent has surged, fueled by the IEBC's inaction on four recall petitions, including one against Nairobi Woman Representative Esther Passaris for alleged failure to address constituent issues.

IEBC Chairperson Erastus Ethekon, in a July 30 statement, reiterated support for recalls but cited the absence of enabling legislation, a stance critics like the Law Society of Kenya (LSK) call a "constitutional failure." LSK President Faith Odhiambo argued that Parliament's delay shields MPs from scrutiny, violating Articles 1, 27, 38, and 47 of the Constitution, which uphold public sovereignty and political rights.

Posts reflect public anger, noting the court's refusal to grant immediate recall orders exacerbates voter frustration.

The 2017 ruling deemed the recall process discriminatory, citing restrictive timelines and high signature thresholds, such as requiring 30% of registered voters' signatures within 30 days.

For instance, recalling Passaris would need 750,000 signatures from Nairobi's 2.5 million voters, a near-impossible task without clear guidelines.

The petitioners assert that Article 104(1) is self-executing, requiring no additional laws, and urge the IEBC to adopt MCA recall procedures for MPs.

The Senate's Justice and Legal Affairs Committee has proposed a six-month timeline to draft new recall laws by February 2026, but critics argue this delays accountability further, especially with the recall window closing in August 2026.

The High Court's directive also involves the Attorney General and National Assembly, signaling a broader systemic issue. The petitioners' lead, Newton Boore, detailed failed attempts to recall Tharaka Nithi Senator Mwenda Gataya, with the IEBC citing its incomplete reconstitution and lack of legal framework in September 2024.

The commission's recent formation under Ethekon on July 11, 2025, has not resolved the issue, as it received no response to a July 23 follow-up. The case's outcome could redefine democratic oversight, with civic groups like Operation Linda Jamii questioning the IEBC's independence.

As the High Court awaits responses, the MP recall delays remain a flashpoint for voter unrest. The IEBC's legal constraints and Parliament's inaction have left citizens powerless to remove underperforming MPs, fueling demands for reform.

The seven-day deadline pressures both institutions to justify their roles in blocking accountability, with the public closely watching for resolution.

The ongoing MP recall delays, rooted in the 2017 ruling, have eroded trust in Kenya's electoral system. The High Court's order for explanations from the IEBC and Parliament depicts the urgency of addressing this legal gap.

With the recall window narrowing, voters seek clarity to exercise their constitutional rights. The High Court's directive to the IEBC and Parliament to explain MP recall delays within seven days marks a critical step toward restoring voter power.

Published by HT Digital Content Services with permission from Bana Kenya.