The Independent Electoral and Boundaries Commission (IEBC) has taken a decisive step to address a long-standing legislative paradox. The Commission has "formally submitted recommendations to Parliament seeking the establishment of a legal framework to enable the recall of Members of Parliament," signaling its readiness to "facilitate the constitutional right of citizens to recall elected representatives."
The IEBC’s move highlights a critical gap in Kenya's legal architecture. While a functional mechanism currently "exists for recalling Members of County Assemblies (MCAs)," no such framework governs the recall of Members of Parliament (MPs) from either the National Assembly or Senate. As the Commission stated, "There is currently no enabling legislation defining the grounds and procedures for recall [of MPs]," leaving a key constitutional provision dormant.
This legislative vacuum is a direct result of a "2017 High Court ruling that nullified sections of the Elections Act as unconstitutional and discriminatory." The landmark case, Katiba Institute and Transform Empowerment for Action Initiative (TEAM) v Attorney General & Another [2017] KEHC 4648 (KLR), struck down the previous recall provisions for "failing to meet constitutional thresholds of fairness and equality." While Parliament subsequently "amended the law to outline the process for recalling MCAs," it has notably "yet to do the same for Members of Parliament," creating a clear disparity in accountability across different levels of government.
The IEBC confirmed that it is currently "processing valid recall petitions for MCAs under the existing framework" but remains "powerless to act on similar calls targeting MPs due to the legislative vacuum." In its formal submission, the electoral body expressed this urgency, stating, “The Commission has formally submitted recommendations to Parliament, urging the enactment of a clear legal framework to govern the recall process for Members of the National Assembly and Senate.”
Ultimately, the IEBC's appeal is a call for legislative urgency to give "full effect to Article 104 of the Constitution," a provision that "empowers voters to remove their representatives from office before the end of their term under specific conditions." The Commission concluded with a note of hope, stating, “We remain hopeful that this will be addressed to uphold the full spirit of Article 104.” By pushing for this crucial legal reform, the IEBC is fulfilling its constitutional mandate and championing a more robust and accountable democratic process, where citizens can truly hold their elected representatives to account.
