IEBC sued for inaction on MP recall petitions, accused of violating voter rights

Six petitioners have sued the Independent Electoral and Boundaries Commission (IEBC) for failing to process recall petitions against underperforming Members of Parliament, claiming the Commission’s inaction violates their constitutional right to hold elected leaders accountable.

The petitioners, including Newton Mugambi Boore, Dennis Mwaki Chabari, Morris Mawira, Agnes Mwende Justus, Seth Mark Kinoti, and Christine Kanana Kithinji, now want the High Court to compel the electoral body to accept and process such petitions using existing legal provisions and frameworks.

In their suit filed at the High Court in Nairobi, the petitioners argue that the Independent Electoral and Boundaries Commission’s refusal to process recall requests undermines Article 104 of the Constitution, which empowers voters to remove Members of Parliament before the end of their term.

They claim the Commission’s continued inaction not only infringes on their constitutional rights but also weakens public oversight over elected officials.

At the centre of the matter is a 2017 High Court judgment that declared sections of the Elections Act outlining the recall procedure for MPs unconstitutional, citing that the provisions were too restrictive. Since that ruling, IEBC has maintained it cannot legally process any such recall efforts.

In a statement on July 30, the Commission reiterated its support for the principle of recall, but noted that there is currently no valid legislation in place to facilitate the process for MPs.

“While the Commission fully supports the electorate’s right to recall non-performing elected leaders, there is no enabling legal framework to guide the recall of MPs at present,” IEBC Chairperson Erastus Ethekon said.

Ethekon clarified that this legal gap affects both National Assembly and Senate members, rendering them immune to public recall for now. He pointed out that the only existing valid framework is for the recall of Members of County Assemblies (MCAs), provided for under the County Governments Act.

Following the 2017 ruling, Parliament amended the County Governments Act in 2020 to provide a working mechanism for recalling MCAs. However, no corresponding legislation has been introduced to allow for the recall of MPs, something the petitioners argue is a serious constitutional failure.

“Following the 2017 Katiba judgment, Parliament amended the County Governments Act, 2012, in 2020 to provide a workable recall mechanism for Members of County Assemblies (MCAs) but failed to enact corresponding legislation for MPs, creating a legal vacuum for the recall of MPs,” the petition reads.

They contend that Parliament, and particularly the National Assembly, has failed to fulfil its obligation under Article 104(2) to enact laws that would enable the public to exercise the right to recall.

The petitioners further allege that this legislative omission shields MPs from public scrutiny and violates various constitutional rights, including Article 1 on the sovereignty of the people, Article 27 on equality and freedom from discrimination, Article 38 on political rights, and Article 47 on fair administrative action.

In their filing, the six argue that Article 104(1) is self-executing and therefore does not require additional legislation to be operationalised.

“The Petitioner contends that the 1st Respondent’s (IEBC) position violates the Constitution by failing to facilitate the electorate’s sovereign right to recall MPs,” reads the petition.

They are asking the court to declare that the IEBC has a constitutional duty to receive and process recall petitions against MPs using the remaining provisions in the Elections Act, as well as the model currently applied to MCAs under the County Governments Act.

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“A Declaration that the right to recall under Article 104(1) is a self-executing constitutional right that does not require enabling legislation to be exercised, and that the 1st Respondent has a duty to facilitate its exercise,” the petition adds.

The petitioners are also seeking a conservatory order to restrain the IEBC from declining to receive or process recall petitions submitted by voters, either pending the court’s determination of the matter or the passage of enabling legislation by Parliament.

In addition, they are requesting the court to issue an order of mandamus compelling Parliament to enact the required recall law within 90 days.