Nairobi, Kenya – Wednesday, 30th July 2025
The Independent Electoral and Boundaries Commission (IEBC) has moved to clarify widespread public confusion over the right of citizens to recall their elected representatives, amid claims that Kenyans lack this constitutional power.
In a detailed press release signed by its newly appointed chairperson, Erastus Edung Ethekon, the IEBC affirmed that the right to recall Members of Parliament (MPs) and County Assemblies (MCAs) is enshrined in Article 104 of Kenya’s Constitution. However, it revealed a critical legal gap preventing the recall of MPs due to the absence of enabling legislation.
The statement comes after days of heated public debate, sparked by reports suggesting that Kenyans had no legal mechanism to hold their national representatives accountable mid-term.
Key Clarifications from the IEBC
1. Right to Recall: Constitutional but Hampered by Legal Void
The IEBC emphasized that while the Constitution grants citizens the power to recall MPs and MCAs, the process for MPs remains unimplemented. This stems from a 2017 High Court ruling (Katiba Institute & TEAM v Attorney General) that struck down sections of the Elections Act governing recalls, deeming them discriminatory.
- For MCAs: A functional framework exists, and the IEBC confirmed it is processing valid petitions.
- For MPs: Parliament has yet to pass new laws to replace the invalidated provisions, leaving the recall process in limbo.
“The Commission has submitted recommendations to Parliament urging the enactment of a clear legal framework to operationalize Article 104 for MPs,” the statement read.
2. Party List Re-Allocation: IEBC Defends Decision
The IEBC also addressed controversy surrounding the re-allocation of a party list seat vacated by ODM’s Hon. John Mbadi. The Orange Democratic Movement had accused the Commission of procedural irregularities, but the IEBC rebutted these claims, citing strict adherence to the Elections Act.
- The seat was filled by the next eligible nominee, Harold Kimuge Kipchumba, as per ODM’s submitted 2022 party list.
- The IEBC published redacted extracts of the list to demonstrate transparency, complying with data protection laws.
Why Can’t Kenyans Recall Their MPs?
The heart of the issue lies in a legislative vacuum. Here’s a breakdown:
- 2017 Court Ruling: The High Court nullified recall provisions for MPs, citing unfairness in the criteria (e.g., requiring higher thresholds for some constituencies).
- Partial Fix for MCAs: Parliament amended laws to clarify MCA recalls but neglected MPs.
- IEBC’s Hands Tied: Without clear rules, the Commission cannot process recall petitions for MPs, despite constitutional provisions.
Legal experts warn that this gap undermines accountability. “Kenyans have a constitutional right to recall leaders who fail them, but Parliament has failed to make this real,” said lawyer Lempaa Suyianka.
Public Reaction and Political Responses
The IEBC’s statement has drawn mixed reactions:
- Civil Society: Groups like Katiba Institute praised the clarification but urged Parliament to act swiftly.
- ODM: The party maintains its stance that the IEBC’s party list decision was flawed, vowing to challenge it.
- Citizens: Many expressed frustration. “Why can we recall MCAs but not MPs? Who’s protecting whom?” asked Nairobi resident Grace Mwende.
What’s Next?
The ball is now in Parliament’s court. The IEBC’s recommendations include:
- Drafting clear, non-discriminatory recall procedures for MPs.
- Aligning the process with constitutional principles of fairness.
Until then, Kenyans’ power to recall national representatives remains theoretical.
IEBC’s Commitment to Democracy
Chairperson Ethekon concluded with a call for unity: “Your trust is the cornerstone of democracy. We serve with impartiality and welcome constructive dialogue to strengthen our institutions.”
Analysis: A Test for Kenya’s Democracy
This saga highlights systemic challenges in Kenya’s governance:
- Accountability Deficit: Without recall mechanisms, MPs face fewer checks.
- Legislative Delays: Parliament’s inaction risks eroding public trust.
- IEBC’s Role: The Commission walks a tightrope between enforcing the law and navigating political pressures.
As 2025 unfolds, all eyes will be on whether lawmakers prioritize public accountability—or self-preservation.
