IEBC: Only MCAs can be recalled, non-performing MPs and senators protected by legal gap

The electoral commission has confirmed that Kenyans cannot currently initiate the recall of their Members of Parliament or Senators, despite constitutional provisions allowing such action, due to the lack of a functioning legal framework.

In a statement on Thursday, the Independent Electoral and Boundaries Commission (IEBC) clarified that although Article 104 of the Constitution grants citizens the power to recall non-performing legislators, there is no valid law in place to enable the process.

The Commission explained that this legal gap prevents it from facilitating the removal of MPs and Senators through public petitions.

“The Commission stands ready to facilitate the process without fear, favour, or hindrance,” said IEBC chairperson Erastus Ethekon, noting that the institution fully supports the right of voters to hold elected leaders accountable.

Ethekon pointed out that the only category of elected leaders currently subject to recall is Members of County Assemblies (MCAs), as the relevant laws remain in force for that level of representation.

“The Commission is actively processing petitions for recall where validly submitted. But for MPs and Senators, the situation is different,” he noted.

The Commission traced the current legal deadlock to a 2017 High Court ruling in the case of Katiba Institute and Transform Empowerment for Action Initiative (TEAM) v Attorney General & Another.

In that case, the court invalidated key sections of the Elections Act, 2011, that provided grounds and procedures for recalling MPs, declaring them unconstitutional and discriminatory.

While Parliament later amended the law to address the recall process for MCAs, it has not enacted new legislation to cover MPs and Senators, effectively leaving Article 104 of the Constitution unenforceable for them.

Despite receiving four petitions seeking the recall of MPs and Senators, Ethekon said the Commission cannot proceed. “We will review them individually, but within the limits of existing law,” he added.

The issue has triggered renewed calls for legislative action, with the Law Society of Kenya (LSK) warning that the failure to address the legal gap undermines democratic accountability.

“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 criticised Parliament for failing to uphold Article 104 and argued that the inaction undermines Article 1 of the Constitution, which places sovereignty in the hands of the people.

Hopes for resolving the issue 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 proposes to align the Elections Act with the 2017 court ruling by deleting the invalidated sections, including the requirement that recall petitions be filed in the High Court and provisions that excluded certain voters from initiating recall processes.

However, the LSK has raised concerns over the scope of the proposed law. “The disturbance of the threshold for removal is unnecessary and was not contemplated by the Court,” said Odhiambo.

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“Parliament must uphold the true spirit and intent of Article 104 and Chapter Six of the Constitution on leadership and integrity.”

The IEBC confirmed that it has already submitted formal recommendations to Parliament, urging lawmakers to pass a new, constitutionally compliant legal framework that would allow citizens to recall MPs and Senators. Until then, Ethekon said, the Commission remains unable to act on such requests.

In September 2024, law firm KMK Africa Advocates LLP wrote to the IEBC seeking guidance on the process for recalling a Senator. In response, IEBC Secretary Marjan Hussein pointed to Article 104 and the Elections Act as the foundational documents but admitted that critical provisions, specifically Sections 45 to 48, had been nullified by the courts.

Marjan noted that the legal void extends beyond just grounds for recall, also affecting procedures and the adjudication process, as the requirement to file petitions in court was also struck out.