Kenyans eager to exercise their constitutional right to recall underperforming Members of Parliament (MPs) or Senators are currently unable to do so due to the lack of enabling legislation, according to the Independent Electoral and Boundaries Commission (IEBC).
While Article 104 of the Constitution grants citizens the power to recall elected leaders, the IEBC confirmed that this right remains unenforceable for MPs and Senators. In a recent statement, IEBC Chairperson Erastus Ethekon emphasized that the Commission is ready to facilitate recalls “without fear, favour, or hindrance,” but is legally restrained from acting on such petitions due to a legislative gap.
This impasse follows a 2017 High Court ruling in the case of Katiba Institute & TEAM v Attorney General, which nullified key sections of the Elections Act 2011 that governed the recall process for MPs. The court found the provisions discriminatory and unconstitutional. While Parliament later amended the law to provide for the recall of Members of County Assemblies (MCAs), no such provisions were enacted for MPs or Senators.
As a result, the IEBC has received four petitions seeking the removal of legislators but cannot proceed beyond preliminary review due to the legal vacuum. IEBC Secretary Marjan Hussein acknowledged that key provisions of the Elections Act specifically Sections 45 to 48 are no longer operational, and the requirement to file recall petitions in court has also been struck down.
The Law Society of Kenya (LSK) has criticized Parliament’s failure to address the issue, warning that this inaction undermines the sovereignty of the people as outlined in Article 1 of the Constitution. LSK President Faith Odhiambo argued that Parliament must honour the spirit of Article 104 and uphold leadership and integrity standards under Chapter Six.
There is some hope in the form of the pending Elections (Amendment) Bill, Senate Bill No. 29 of 2024, which seeks to restore a recall mechanism for MPs. However, the LSK has raised concerns that the bill unnecessarily narrows the grounds for recall, potentially weakening the democratic tool.
Until Parliament acts, Kenyans remain unable to legally remove non-performing MPs or Senators, despite having the constitutional right to do so.
