IEBC can facilitate recall of MPs even without an enabling law

IEBC Chairperson Erastus Edung Ethekon during swearing-in at the Supreme Court in Nairobi, on July 11, 2025. [Kanyiri Wahito, Standard]

In a recent communique, the Independent Electoral and Boundaries Commission (IEBC) asserted that it cannot facilitate the recall of Members of Parliament (MPs) under Article 104 of the Constitution due to the lack of enabling legislation. Citing a 2017 High Court decision that nullified some sections of the Elections Act on grounds of discrimination, the IEBC pleads legislative paralysis as its excuse for inaction. This position, while technically accurate in a narrow statutory sense, is dangerously misleading and legally regressive in the context of the Constitution.

IEBC’s claim amounts to a reversion to colonial-era legal formalism. This is the same doctrine under which rights were not rights unless validated by Parliament, a thinking that subordinated constitutional authority to legislative whim. Such a posture contradicts the entire raison d’être of the Constitution; that is to rupture from the past and inaugurate a transformative, rights-centric constitutional order.