Nairobi — IEBC Chair Ethekon: Recall Under Article 104 Blocked by Legal Gap

 Nairobi | July 30, 2025

In a strongly worded public briefing, Independent Electoral and Boundaries Commission (IEBC) Chair Erastus Ethekonhas clarified that while Article 104 of the Constitution empowers voters to recall members of Parliament and Senators, the absence of implementing legislation has rendered the provision dormant and unusable for now. 

Legal Void in Recall of MPs and Senators

Ethekon emphasized that no current laws define the grounds or process for recalling MPs and Senators, following a 2017 High Court ruling in Katiba Institute & TEAM v Attorney General which declared key sections of the Elections Act 2011 unconstitutional. That judgment struck procedural provisions for national legislators as discriminatory and void. 

Although Parliament later amended the law to create a recall mechanism for Members of County Assemblies (MCAs), it has yet to enact corresponding legislation for MPs or Senators. As a result, despite receiving at least four formal petitions, the IEBC is legally barred from processing recall applications for national legislators. 

What IEBC Can and Cannot Do

Ethekon affirmed:

“The Commission stands ready to facilitate the process without fear, favour, or hindrance” — emphasizing that the current impasse is not institutional reluctance, but a statutory deficiency. 

Under existing law, the Commission continues to process valid recall petitions for MCAs, where enabling legislation now exists. However, Article 104 remains a constitutional right in name only when it comes to Parliament. 

Recall of National Legislators: Petitions Received, No Action Permitted

Role	Constitutional Clause	Current Status
MPs & Senators	Article 104 (2010)	Cannot be recalled – legal gap
Members of County Assembly	Supporting legislation exists	Recall petitions processed

Legal and Public Rights Implications

• Boarding constitutional disconnect: While Article 104 formally grants the electorate recall powers, Parliament’s failure to enact implementing rules has suspended that right in practice. 

• LSK Critique: The Law Society of Kenya has criticized Parliament’s inaction, arguing the constitutional right has effectively been nullified.   

What Needs to Change

Legislative action is critical to bridge this constitutional lacuna:

• Pass new enabling legislation setting out grounds (e.g., gross misconduct or violation of Chapter Six), thresholds, timelines, and authorized authorities for MP and Senator recall.

• Review current petitions, even if stalled, to prepare for future enactment.

• Facilitate public education to ensure Kenyans understand both their constitutional rights and why they remain dormant.

Senate Bill No. 29 of 2024 — an Elections Amendment Bill dealing with recall provisions — could be the vehicle to fix this impasse. It is currently awaiting its second reading in the National Assembly. 

Conclusion: A Right in Limbo

Kenya’s constitutional framework envisages recall as a tool for accountability. However, until Parliament fills the legal vacuum with clear implementing laws, voters cannot exercise their right to recall MPs or Senators under Article 104. The ball is now in lawmakers’ court — either to affirm constitutional design or allow the right to dissolve into irrelevance.