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The Independent Electoral and Boundaries Commission (IEBC) has clarified that it is currently impossible for Kenyans to recall their Members of Parliament, citing a critical gap in the law that has left the constitutional provision unenforceable.
In a statement released on Wednesday by Chairperson Erastus Edung Ethekon, the electoral body addressed the growing public clamour for the removal of non-performing MPs, confirming that while the right exists in principle, the procedure to execute it is missing.
The statement highlights a sharp distinction between the process for Members of County Assemblies (MCAs) and that for Members of the National Assembly and the Senate.
Chairperson of the Independent Electoral and Boundaries Commission (IEBC) Erastus Edung Ethekon
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For MCAs, the IEBC confirmed that "a statutory framework is in place, and the commission is actively processing petitions for recall where validly submitted."
However, the situation is entirely different for MPs. "There is currently no enabling legislation defining the grounds and procedures for recall," the Chairperson's statement reads.
This legal vacuum is a direct consequence of a 2017 High Court ruling. In the case of Katiba Institute & Transform Empowerment for Action Initiative (TEAM) v Attorney General & Another [2017] KĘHC 4648 (KLR), the court declared the provisions for recalling MPs within the Elections Act 2011 unconstitutional for being discriminatory.
While Parliament subsequently amended the law to create a recall mechanism for MCAs, it failed to enact corresponding legislation for its own members, effectively shielding them from the process.
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Parliament of Kenya
Implications of the Gap
The IEBC's clarification means that Article 104 of the Constitution, which enshrines the right of citizens to recall their elected representatives, remains "toothless" when it comes to MPs.
Citizens and civil society groups seeking to hold their national legislators accountable through recall have no legal avenue to do so.
The commission has placed the responsibility squarely on the shoulders of Parliament.
"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," the statement noted.
In his concluding remarks, Chairperson Ethekon reiterated the IEBC's commitment to the Constitution and called on Kenyans to support the commission in strengthening democratic institutions.
However, this statement underscores that for a key democratic check to function, the power to act now rests solely with the very institution it is meant to hold accountable.
Until Parliament legislates a new framework, the power of voters to recall their MPs will remain on hold.
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Nairobi Woman Representative Esther Passaris
Sigh of Relief for Esther Passaris
In late July 2025, four activists filed a formal petition seeking to recall Nairobi Woman Representative Esther Muthoni Passaris under Article 104 of the Constitution.
The petition cited seven constitutional violations, including alleged infringements of Articles 10, 35, 37, 73, 75, 95, and 232.
The activists accuse Passaris of undermining peaceful protest and civic participation, neglecting to represent Nairobi’s women, especially during periods of police brutality, aligning with executive overreach, refusing to disclose spending from the National Government Affirmative Action Fund (NGAAF), breaching leadership and integrity standards under Chapter Six, and spreading misinformation.
Requests to recall Passaris also referenced her sponsorship of the Public Order (Amendment) Bill, which was widely criticised for potentially curtailing the constitutional right to peaceful assembly.
Critics argue the legislation favours law-and-order regimes over the protection of dissent and public protest.
The IEBC’s latest clarification has effectively frozen all recall efforts targeting Members of Parliament, including the petition against Nairobi Woman Representative Esther Passaris.
While the Constitution grants citizens the right to recall under Article 104, the Commission has confirmed that this right cannot be exercised because there is no supporting law outlining how such a recall should be carried out for MPs and Senators.