When Kenyans overwhelmingly passed the 2010 Constitution, one of their boldest statements was this: The people are sovereign. They embedded this truth in nearly every chapter of the Constitution. Among its most powerful tools of accountability is Article 104- the right of voters to recall a Member of Parliament (MP). This provision was meant to ensure that no elected leader could grow arrogant or complacent without consequence. Now, however, the Independent Electoral and Boundaries Commission (IEBC) is attempting to subvert that right by claiming that there is “no enabling legislation” to guide the process.
That position is not only legally flawed. It is unconstitutional, and it betrays the spirit of the 2010 Constitution. Article 104 is self-executing. It does not require additional laws to give it life. The failure of Parliament to enact a detailed framework is not a barrier to implementation. It is a dereliction of duty that voters should not be punished for.
Let’s begin with the text of the Constitution itself.
Article 104(1): The electorate under Articles 1 and 2 have the right to recall a member of Parliament before the end of the term of the relevant House of Parliament.
Follow The Standard
channel
on WhatsApp
This is a direct grant of power to the people. It says, plainly, that the electorate has the right to recall their MP. It is framed as a right, not as a privilege subject to parliamentary discretion. That matters. Constitutional rights are not gifts from Parliament. They exist and are enforceable even in the absence of enabling legislation, especially when the Constitution is clear and direct, as it is here.
Moreover, Article 1 of the Constitution states:
Article 1(1): All sovereign power belongs to the people of Kenya.
Article 1(2): The people may exercise their sovereign power either directly or through their democratically elected representatives.
So when voters seek to recall their MPs, they are exercising direct sovereign power. Not begging for permission. The only legitimate role of IEBC is to facilitate this process, not obstruct it. To be fair, Parliament once enacted the Elections Act, 2011, which included Sections 45–48 on the recall of MPs. But those provisions were later declared unconstitutional in the case of Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another (2014).
The court found the procedure unnecessarily restrictive and contrary to the Constitution. However, rather than amend the law to align with constitutional standards, Parliament simply let the matter die. This failure to pass a lawful and fair recall mechanism does not mean voters must wait indefinitely to enjoy their constitutional right. It means, instead, that the constitutional provision must be implemented as it is, through a reasonable and fair administrative process under Article 47 (the right to fair administrative action) and Article 10 (national values and principles of governance, including accountability and public participation).
It is not the job of Parliament to delay constitutional rights. Nor is it the job of IEBC to refuse to act because Parliament has failed. The Constitution remains the supreme law of the land. Where there is a constitutional vacuum, it must be filled with administrative good faith, not inaction.
The IEBC’s role under Article 88(4) includes conducting or supervising referenda and elections for any elective body or office established by the Constitution, and performing any other functions prescribed by the Constitution or national legislation.
When a voter initiates a recall petition, IEBC is not being asked to interpret ambiguous law. It is being asked to carry out its constitutional duty: To verify the petition, authenticate the signatures, and oversee the recall vote if the threshold is met. These are not extraordinary tasks; they are part of the commission’s core mandate.
If IEBC claims it cannot act due to lack of legislation, the obvious question is this: Did IEBC request Parliament to pass the necessary law? If not, its inaction is even more troubling. And if it did, has it challenged the delay in court? Or issued a legal advisory? Or drafted regulations under its constitutional mandate?
Voters have a right to ask: If IEBC can conduct a general election using the constitutional framework, why can’t it conduct a recall under the same?
The courts have held in several cases that constitutional rights are not suspended merely because Parliament has failed to act. In CREAW & Others v Attorney General (2013), the High Court ruled that constitutional provisions, especially on human rights, can be enforced even in the absence of legislation.
The recall provision is a political right under Article 38, and such rights cannot be rendered meaningless by legislative inaction. To accept IEBC’s argument is to say that Parliament can sabotage Article 104 by simply refusing to legislate. A dangerous precedent in a constitutional democracy.
The 2010 Constitution was designed to break the culture of impunity and bring leaders under public control. Recall is not about revenge. It is about accountability. It is about the people having the final say. Not just once every five years, but any time a leader ceases to serve their mandate faithfully.
IEBC’s attempt to paralyse this right under the excuse of legal gaps is both cowardly and unconstitutional. Instead of sitting on its hands, the commission should craft reasonable administrative guidelines consistent with Article 104 and the Bill of Rights. It should also support civic education to inform citizens of their powers and processes under the Constitution.
Article 104 is not a suggestion. It is not a proposal waiting for Parliament’s mercy. It is a constitutional command, and it is self-executing. Kenyans have a right to recall their MPs. IEBC’s duty is not to question that right. It is to facilitate it. And if the IEBC continues to delay? Then the people must use Article 258 to move to court and demand that constitutional obedience replaces bureaucratic excuses. The Constitution cannot defend itself. It relies on citizens to give it life. And the time to do so is now.
Follow The Standard
channel
on WhatsApp
By Gitobu Imanyara