Kenya, July 30 -- The Independent Electoral and Boundaries Commission (IEBC) has revealed a significant legal gap in the MP recall process, rendering it impossible to act on petitions seeking to remove Members of Parliament (MPs) from office.
IEBC Chairperson Erastus Edung Ethekon announced that a 2017 High Court ruling, which declared key sections of the Elections Act unconstitutional, has left Kenya without a clear framework to execute recalls under Article 104 of the Constitution.
This legislative void, unaddressed by Parliament for nearly eight years, has sparked public frustration as citizens demand accountability from elected officials following the controversial Finance Bill 2024 protests.
The absence of a functional recall framework stems from a 2017 High Court decision in the case of Katiba Institute & Transform Empowerment for Action Initiative (TEAM) v Attorney General & Another.
The court invalidated Sections 45, 46, and 48 of the Elections Act, citing discriminatory provisions and procedural ambiguities that violated constitutional principles.
These sections previously outlined grounds for recalling MPs, such as gross violation of the Constitution, mismanagement of public resources, or electoral offences.
Without these legal anchors, the IEBC cannot process recall petitions, including four recently submitted against unnamed MPs and a high-profile petition targeting Nairobi Woman Representative Esther Passaris.
"The commission cannot facilitate recalls due to the lack of enabling legislation," Ethekon stated, urging Parliament to fast-track amendments to restore the constitutional right under Article 104.
This legal gap has fuelled public discontent, particularly among activists and voters who view the recall process as a critical tool for holding non-performing leaders accountable.
Article 104 of Kenya's 2010 Constitution grants citizens the right to recall MPs, emphasising the sovereign power of the electorate under Article 1.
However, the procedural hurdles, including the lack of clear grounds and timelines, have rendered this right dormant. The Law Society of Kenya (LSK) has criticised Parliament's inaction, with LSK President Faith Odhiambo calling for urgent legislative reforms to reinstate the recall mechanism.
"It's unacceptable that a constitutional right remains unenforceable due to legislative neglect," Odhiambo said.
The IEBC has received four recall petitions since its reconstitution in July 2025, with Ethekon confirming that each will be reviewed based on merit within the constraints of existing law.
However, without a revised Elections Act, these petitions are likely to stall. For instance, a petition filed by activists Shakira Wafula, Mavin Mabonga, Dominic Omondi, and Sichei Soet against Passaris alleges constitutional violations and failure to represent Nairobi constituents.
The activists face the daunting task of collecting signatures from 30% of Nairobi's 2.5 million registered voters, approximately 750,000 signatures, within 30 days, a requirement that remains legally ambiguous without a clear framework.
The 2017 ruling highlighted several flaws in the recall process, including restrictive timelines that prohibit recalls within the first 24 months of an MP's term or 12 months of a general election.
Critics argue these restrictions, combined with high signature thresholds and the need for a High Court judgement, create an almost insurmountable barrier for citizens.
Governance analyst Fanya Mambo Kinuthia noted, "The law places an undue burden on voters, effectively shielding MPs from accountability."
The IEBC has formally submitted recommendations to Parliament, urging the enactment of a new legal framework to address these gaps, but progress remains slow.
The Senate's Standing Committee on Justice, Legal Affairs, and Human Rights has proposed a six-month timeline for the Attorney General to develop a policy framework for recalling both elected and nominated MPs and Members of County Assemblies (MCAs).
The committee, chaired by Bomet Senator Hillary Sigei, emphasised collaboration with the IEBC, Kenya Law Reform Commission, and other stakeholders to draft bills by February 2026, ahead of the 2027 General Election.
However, until these reforms are enacted, the recall process remains stalled, leaving voters with limited recourse to address underperformance.
Public frustration has been amplified by recent political developments, particularly the Finance Bill 2024 protests, which exposed widespread dissatisfaction with parliamentary representation.
Social media platforms have seen false claims of 60 recall petitions, which the IEBC swiftly debunked, clarifying that only four petitions have been received. Political commentator Justina Wamae has highlighted the need for public education on the recall process, noting that while Article 104 empowers voters, the lack of enabling legislation undermines democratic accountability.
The IEBC is also grappling with other priorities, including preparations for 23 pending by-elections and boundary delimitation, tasks delayed by the commission's prolonged vacancy until July 2025.
Ethekon has called for public and parliamentary support to strengthen democratic institutions, emphasising the need for timely budgetary allocations and legislative reforms.
As Kenya approaches the 2027 General Election, the absence of a recall framework continues to erode public trust in the electoral system, with citizens demanding clearer pathways to hold leaders accountable.
Published by HT Digital Content Services with permission from Bana Kenya.