Voters frustrated with elected members of parliament have no legal avenue to recall them, the Independent Electoral and Boundaries Commission (IEBC) Chairman Erastus Ethekon confirmed on Tuesday. The electoral body pointed to a 2017 court ruling that left Article 104 of the Constitution unenforceable in the absence of enabling legislation.
“There is currently no enabling legislation defining the grounds and procedures for recall,” said IEBC Chairperson Erastus Ethekon in a formal statement. The Commission cited the High Court ruling in Katiba Institute and Transform Empowerment for Action Initiative (TEAM) vs Attorney General and Another, which nullified parts of the Elections Act for violating the principle of non-discrimination.
That judgment declared the recall process, as previously structured in the Elections Act 2011, unconstitutional. As a result, there is no lawful framework through which citizens can initiate the removal of a Member of Parliament or Senator, even on grounds of non-performance.
The Commission said the recall process for Members of County Assembly (MCAs) remains functional under current legal provisions.
The Commission called on lawmakers to fix the legal gap that has rendered Article 104 ineffective. The Article grants citizens the constitutional right to recall non-performing representatives.
“We have 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,” Ethekon said. “We remain hopeful that this will be addressed to uphold the full spirit of Article 104.”
The IEBC’s position comes amid growing public discontent over the performance of some legislators. Citizens have increasingly voiced frustrations over stalled development, absentee lawmakers, and broken campaign promises.
Without legal backing, any public petition to recall a lawmaker from Parliament cannot be acted upon, no matter how many signatures it gathers. Activists and civil society groups have long pushed for legal reforms to operationalize Article 104, arguing that denying voters a recall mechanism undermines accountability.
Despite calls for change, Parliament has yet to draft or pass new legislation to fix the loophole. The IEBC’s statement now puts the burden back on lawmakers to restore a critical democratic tool that would allow voters to hold their representatives accountable between elections.
Until then, underperforming MPs and Senators remain shielded from early removal even if voters demand it.
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