A legal vacuum has spared Members of Parliament and Senators from being recalled by voters, despite rising public dissatisfaction with their performance.

The Independent Electoral and Boundaries Commission (IEBC) said on Wednesday that although it supports citizens’ right to recall non-performing legislators, it cannot act on recent petitions due to a missing law.

While Article 104 of Kenya’s Constitution gives voters the power to recall their elected representatives, the IEBC said this provision remains dormant because Parliament has never enacted the necessary legislation to operationalise it.

“The Commission stands ready to facilitate the process without fear, favour, or hindrance,” said IEBC Chairperson Erastus Ethekon. “But for MPs and Senators, the situation is different.”

The paralysis traces back to a 2017 High Court ruling in Katiba Institute and Transform Empowerment for Action Initiative v Attorney General, which struck down sections of the Elections Act 2011 that had laid out the procedure for recalling MPs. The court found the law unconstitutional and discriminatory.

Although Parliament moved swiftly to fix the law for recalling Members of County Assemblies (MCAs), it failed to address the gap affecting MPs and Senators. That omission means lawmakers in the National Assembly and Senate cannot be removed from office through a recall—even when there is public will and supporting evidence.

“The law was amended to provide for the recall of MCAs, but similar action was never taken for Members of Parliament,” the Commission noted.

The IEBC revealed it has received four petitions seeking the removal of MPs, including one against Nairobi Woman Representative Esther Passaris. Yet without legislation, it cannot process any of them.

Previously, a voter-initiated recall required a formal application to the Commission and the collection of signatures from at least 30 percent of registered voters in a constituency. If verified, this would lead to a by-election. The IEBC says that the process no longer exists following the court’s decision.

Now, MPs and Senators are effectively insulated from public dissatisfaction over the performance which could have logically led to by elections—a development many observers say undermines the very principle of representative democracy.

Civic groups and experts have accused Parliament of intentionally dragging its feet on the matter. Some believe lawmakers have avoided the issue to protect themselves from a law that could make it possible to kick them out.

The Law Society of Kenya (LSK) has raised concerns that the Bill overreaches by further limiting the grounds on which an MP or Senator can be recalled.

 “Unfortunately, the necessary legal reconciliation was never done. “As a result, the right has been suspended both in law and practice,” said LSK President Faith Odhiambo. 

The electoral body said it has written to Parliament urging it to enact the necessary legal framework but has received no response, and until then, the Commission is powerless.

“The disturbance of the threshold for removal is unnecessary and was not contemplated by the Court,” said Odhiambo.

“Parliament must uphold the true spirit and intent of Article 104 and Chapter Six of the Constitution on leadership and integrity.”

The timing is particularly sensitive. In recent months, the public has grown increasingly critical of Parliament’s perceived failure to check the Executive, rising absenteeism in the House, and MPs’ focus on personal privileges rather than public service. The IEBC’s statement may only intensify these frustrations.

One observer Esther Mungai said “I dont know which language you want to hear but Kenyans have ZERO TRUST in this institution. Do you know how long people have waited to recall Members of Parliament only for you to give a statement that shows you’re indirectly protecting them?? Na sasa ikifikia Presidential election?”