Six petitioners sue IEBC over failure to process MP recall petitions
The petitioners accuse the electoral agency of violating their constitutional rights and undermining public accountability by refusing to process recall petitions
Six Kenyan citizens have filed a petition at the High Court in Nairobi, challenging the Independent Electoral and Boundaries Commission (IEBC) for failing to act on their attempts to recall Members of Parliament.
The petitioners, Newton Mugambi Boore, Dennis Mwaki Chabari, Morris Mawira, Agnes Mwende Justus, Seth Mark Kinoti, and Christine Kanana Kithinji accuse the electoral agency of violating their constitutional rights and undermining public accountability by refusing to process recall petitions.
At the heart of the case is Article 104 of the 2010 Constitution, which grants voters the right to recall their elected representatives before the end of their term. However, IEBC has consistently maintained that a 2017 High Court ruling rendered sections of the Elections Act governing MP recalls unconstitutional, leaving no legal framework to facilitate such petitions.
In a statement issued on July 30, the Commission reiterated its support for the constitutional right to recall underperforming leaders but said that, in the absence of enabling legislation, it cannot lawfully process petitions to recall MPs including both senators and members of the National Assembly.
IEBC Chairperson Erastus Ethekon clarified that only Members of County Assemblies (MCAs) can currently be recalled, as the County Governments Act was amended in 2020 to provide a viable recall mechanism following the "Katiba" judgment.
The petitioners argue that Parliament, particularly the National Assembly, has failed in its constitutional duty to operationalize Article 104(2) by not enacting new legislation to guide the recall of MPs. They say this failure creates a protective buffer for legislators against public accountability.
In their court filings, the six maintain that the right to recall is self-executing and does not require additional legislation. They are urging the court to compel IEBC to process petitions using the surviving parts of the Elections Act and the recall procedures currently applicable to MCAs.
They also want the court to issue an order of mandamus compelling Parliament to enact the necessary laws within 90 days, and a conservatory order barring IEBC from rejecting any recall petitions submitted by the public in the interim.
“A declaration that the right to recall under Article 104(1) is a self-executing constitutional right that does not require enabling legislation to be exercised, and that the 1st Respondent has a duty to facilitate its exercise,” the petition reads in part.
