IEBC clarifies legal hardle in recalling MPs

The Independent Electoral and Boundaries Commission (IEBC) has clarified why Kenyans are currently unable to recall Members of Parliament (MPs) or Senators, despite Article 104 of the Constitution granting citizens that right.
This comes even as the attention now shifts to the Elections (Amendment) Bill, Senate Bill No. 29 of 2024, currently awaiting its second reading in the National Assembly.
The Bill seeks to address the legal vacuum by deleting the invalidated sections of the Elections Act, such as the requirement to file recall petitions in the High Court and the limitations on who can initiate such actions.
However, the Law Society of Kenya (LSK) has voiced concern that the Bill could undermine the recall process further by narrowing the grounds on which MPs or Senators can be removed.
In a detailed statement released on Wednesday, 30 July 2025, the Commission emphasised that while it supports voters’ constitutional right to recall underperforming leaders, there is no active legal framework enabling such action against MPs and Senators at this time.
“The Commission stands ready to facilitate the process without fear, favour, or hindrance,” the statement read.
IEBC noted that the existing legal provisions for recall only apply to Members of County Assemblies (MCAs). The Polls commission is currently processing petitions for MCA recalls where statutory requirements have been satisfied.
“The Commission is actively processing petitions for recall where validly submitted. But for MPs and Senators, the situation is different,” IEBC said.
It said the legal deadlock stems from a 2017 High Court ruling in the case of Katiba Institute and Transform Empowerment for Action Initiative (TEAM) v Attorney General & Another. The court invalidated key sections of the Elections Act 2011 that had outlined grounds and procedures for recalling MPs, deeming them unconstitutional and discriminatory.
While Parliament amended the law afterwards to cover the recall of MCAs, it did not pass new legislation to govern the recall of MPs or Senators. This omission, IEBC explained, has left the Commission unable to act on four recent recall petitions targeting MPs and Senators.
Addressing the press, IEBC Chairperson Erustus Ethekon confirmed that the commission had received the four petitions but clarified they would only be reviewed “within the limits of existing law.”
National Assembly on Session.PHOTO/@NAssemblyKE/X
MPs recall discourse
The situation has reignited public debate, with legal and civil society actors urging immediate legislative intervention. LSK President Faith Odhiambo criticised Parliament for failing to align the law with the Constitution and court ruling.
“Unfortunately, the necessary legal reconciliation was never done. As a result, the right has been suspended both in law and practice,” Odhiambo said during an interview on a local TV on Tuesday, July 29, 2025.
LSK warned that the constitutional safeguard in Article 104, and by extension, the sovereignty of the people enshrined in Article 1, remains legally unenforceable due to legislative inertia.
“The disturbance of the threshold for removal is unnecessary and was not contemplated by the Court. Parliament must uphold the true spirit and intent of Article 104 and Chapter Six of the Constitution on leadership and integrity,” she explained.
The IEBC has already submitted formal recommendations to Parliament, urging it to enact a comprehensive and constitutionally compliant framework for recalling MPs. Until such a framework is in place, the Commission maintains that citizens’ ability to exercise their recall rights remains suspended.