High Court rules on politicians’ degrees rule

By , People Daily Digital
Friday, October 15th, 2021 00:00 | 2 mins read
Senior counsel Tom Ojienda.

All politicians without university degrees will today know whether they will be allowed to participate in next year’s General Election, when the High Court rules on a case seeking to suspend the requirement.

Justice Antony Mrima is expected to render the long-awaited decision on five consolidated petitions challenging the amendment of the law (Elections Act) by Parliament in 2015.

In the petitions filed by the County Assembly Forum (CAF) and six others, the petitioners argue that the law that is set to take effect in the 2022 polls requiring contestants for parliamentary and ward seats to possess a university degree, is unconstitutional.

Same criteria

CAF, which represents MCAs, also argues that it is unfair to subject them to the same qualifications as MPs.

Through lawyer Tom Ojienda, the MCAs say Parliament should have not set the same criteria as that of MPs, governors and the President given that their roles and functions are different.

“If the said law is upheld,, up to 70 per cent of the MCAs will not be allowed to participate in the elections since they lack degrees,” Ojienda argued.

He submitted that taking into account the last population census, some counties and wards will miss representation if the amendment is upheld.

He singled out Mt Elgon in Bungoma County, which he said does not have a single MCA with a university degree.

Ojienda told Justice Mrima that MCAs do not earn the same salaries or perform the same functions as their superiors.

Public participation

There was no public participation conducted by Parliament, before the law was passed, as required by the law, they argued.

The Independent Electoral and Boundaries Commission (IEBC), which is the Respondent in the case has however asked the court to dismiss the matter, saying that removing education qualifications for all elective and nominated positions would be absurd.

 “The standard set by Parliament under Section 22 of the Election Act cannot be discriminatory, as it cuts across all persons and those who do not qualify have an opportunity to first seek to attain the qualification,” says the polls agency.

IEBC urges the court to uphold the presumption of constitutionality of the impugned Section 22 of the Elections Act pending the hearing and determination of the petition.

‘IEBC contends that it is not correct that MCAs perform unique roles deserving different qualifications.

In one of the petitions, the petitioners argue that Section 22 of the Elections Act 2011 specifically fails to recognise any other form of training or competence other than a conventional degree from a recognised university. 

The petition filed by Sheria Mtaani and lawyer Shadrack Wambui, argue that the Covid-19 pandemic disrupted the academic year 2020, therefore hampering and frustrating many Kenyans who wanted to have their degrees by this year.

A similar petition has been filed at the National Assembly calling for a repeal of Section 22(1)(b) of the Elections Act, 2011 requiring those vying for elective posts to have a degree.

The National Assembly’s Justice and Legal Affairs Committee is currently considering views from members of the public on the petition.

Preserve of the elite 

 The petitioners, Antony Manyara and John Wangai argue that since Covid-19 disrupted the academic calendar, some sitting and aspiring candidates who do not meet the academic requirements were disadvantaged, as they were not in a position to complete degrees within the projected time period of less than two years to the next election.

 They also argued that the university degree requirement will make political leadership a preserve of the elite