Parliamentary body IEBC has the potential to initiate the process of recalling Members of Parliament, even without a specific law in place.
In the ongoing debate surrounding the recall of Members of Parliament (MPs) in Kenya, the Independent Electoral and Boundaries Commission (IEBC) has claimed that it cannot facilitate the process due to the lack of enabling legislation. However, this position can be challenged based on the transformative nature of the Kenyan Constitution and the principle of fidelity to constitutional values.
The Constitution of Kenya is a living charter, requiring interpretation and application of its provisions in a manner that advances its fundamental values. Article 104, which empowers voters to recall their representatives before the end of their term, is a direct expression of people power and does not require a permission slip from the political class it seeks to discipline.
The IEBC's claim of legislative paralysis as a reason for not facilitating recall petitions conflicts with the transformative and fundamental nature of the Constitution. The Constitution's spirit requires state organs to uphold democratic accountability and not hide behind legislative inaction to avoid empowering citizens to enforce Article 104.
Critics argue that the current legislative inaction effectively frustrates the constitutional right to recall, thereby undermining accountability mechanisms envisaged by the Constitution. The Court of Appeal affirmed in Judges and Magistrates Vetting Board v Kenya Human Rights Commission (2014) that constitutional mandates do not go into abeyance for want of legislation.
The IEBC's stance is a reversion to colonial-era legal formalism, which subordinated constitutional authority to legislative whim. The commission should actively facilitate recall through open frameworks, public participation, and judicial guidance, as these are essential components of a transformative Constitution.
Legal analysts suggest that the IEBC and citizens could invoke the constitutional principle of fidelity—which mandates that all state organs uphold the Constitution's spirit and content—to challenge the Commission’s stance and compel facilitation of recalls without awaiting further legislation. The people are the original sovereigns, and constitutional rights must be interpreted to promote, not defer, their enjoyment.
In summary, while the IEBC’s position reflects the current legislative reality, it can be legally contested on constitutional grounds emphasizing the transformative mandate and the principle that procedural technicalities should not nullify substantive constitutional rights. The Constitution’s spirit requires state organs to uphold democratic accountability and not hide behind legislative inertia to avoid empowering citizens to enforce Article 104. The path forward is for the IEBC to abandon colonial deference to legislative inertia and embrace its role as a proactive guardian of constitutional democracy.
The ongoing debate about the recall of Members of Parliament in Kenya suggests that the Independent Electoral and Boundaries Commission's (IEBC) claim of needing enabling legislation to facilitate the process may not hold ground, considering the transformative nature of the Kenyan Constitution and the principle of fidelity to constitutional values. In this context, the Constitution's spirit requires state organs, such as the IEBC, to uphold democratic accountability, not hide behind legislative inaction or procedural technicalities to avoid empowering citizens to enforce Article 104, which empowers voters to recall their representatives. This issue is significant in the realms of policy-and-legislation, general-news, and politics.
