The High Court has dismissed a petition that sought to compel Parliament to pass legislation enabling voters to recall Members of Parliament, holding that the matter was brought too soon because the proposed law is already being considered.
In a decision delivered on Tuesday, July 7, Justice Roselyne Aburili ruled that Parliament should be allowed to continue its deliberations on the Elections Amendment Bill, 2024, without court intervention.
Justice Aburili said, “This petition is premature and not ripe for determination and that the petitioners, as well as the court, should let Parliament legislate and wait for the outcome.”
The court also found that while Article 104 of the Constitution guarantees Kenyans the right to recall elected leaders, that right cannot be implemented unless Parliament enacts the required Act.
Justice Aburili also ruled that the Independent Electoral and Boundaries Commission (IEBC) cannot set up recall procedures on its own without an enabling law, warning that such action would amount to Parliament taking on a role reserved for it.
She said, “The constitutional right to recall is not self-executing and can only be operationalized through legislation enacted by Parliament,” adding that the recall framework must come through Parliament.
The petition grew out of efforts by a group of seven Kenyans to push for the recall of Tharaka Nithi Senator Mwenda Gataya Mo Fire, citing alleged abuse of office.
According to court records, the petitioners wrote to the electoral body on August 21, 2024, to request guidance on the process for recalling the senator. IEBC replied on September 9, 2024, stating that it could not facilitate the matter because it had not been fully constituted at the time and because no law set out a recall mechanism for Members of Parliament.
After the appointment of new IEBC commissioners, the petitioners again asked the commission for guidance on the same recall procedures, but the IEBC held to its earlier position. The group then took the matter to the High Court.
In the case they filed, the petitioners named the National Assembly and the Office of the Attorney General as respondents in addition to the IEBC.
Justice Aburili’s latest ruling gives Parliament additional time to complete its consideration of the Elections Amendment Bill, 2024, which aims to establish the legal framework for recalling MPs. While the Constitution guarantees the right to recall MPs before the end of their term, the court found that the right cannot take effect in practice until Parliament enacts the enabling legislation.
As things stand, voters who want to remove MPs accused of neglecting their duties have no legal mechanism to start a recall. The judgment means they must wait until Parliament passes the bill.
The ruling also places the key responsibility on Parliament to set out how the recall process will operate, including the grounds for recall, the thresholds that must be met, and the procedures the IEBC will follow in conducting the exercise.
