IEBC: High Court has no mandate to hear petitions on degree rule for aspirants
The electoral agency has questioned the powers of the High Court to determine five petitions filed last month against a law requiring political aspirants to have a university degree.
The Independent Electoral and Boundaries Commission (IEBC) says the court, having previously dealt with the issue, has no mandate to reopen the dispute.
IEBC Director for Legal and Public Affairs Michael Goa says the court has since 2013 dealt with three other cases similar to the current petitions and therefore it cannot determine the dispute again.
He adds that one of the previous cases, filed by former Kilome MP John Harun Mwau, escalated to the Court of Appeal and the degree requirement was upheld.
“This court lacks the power and authority to hear and determine the issues raised in the petitions, the said issues having already been heard and determined. This court is bound by the decision made by the Court of Appeal,” Mr Goa says. He says the petitions lack merit and should be dismissed.
IEBC rejects claims by the petitioners that the law is discriminatory because it fails to recognise that post-primary school education is not free for all and is not accessible to everyone.
IEBC also argues that it is not correct that members of county assemblies (MCAs) perform unique roles deserving different qualifications.
“MCAs by virtue of Article 185 of the Constitution and Section 8(1) of the County Governments Act perform legislative functions just like members of Parliament,” the IEBC says.
It says the degree requirement was lawfully enacted by Parliament and is a statute and for that reason, removing the educational qualifications “would be absurd and would run contrary to Articles 99(1) and 193(1)(b) of the Constitution which require Parliament to enact legislation on such qualifications”.
Mr Goa explains that in demanding that aspirants in the forthcoming General Election hold a university degree, IEBC is only performing its mandate. In his view, the petitions were filed too late because the disputed law was introduced about five years ago, in January 2017.
He says the first court case against the requirement for a post-secondary school qualification for parliamentary aspirants was filed in June 2012 by former Machakos senator Johnson Muthama.
In a June 29, 2012 judgment, Justice Mumbi Ngugi (now judge of Court of Appeals) declared that sections 22(1)(b) and 24(1)(b) of the 2011 Elections Act, which bar persons not holding a post-secondary school qualification from being nominated as candidates for elective office or for nomination to Parliament, was unconstitutional.
Following that ruling, Parliament amended that Act and demanded that aspirants for MP and ward rep seats hold a certificate, diploma or any other post-secondary qualification acquired after a period of at least three months of study.
Parliament also amended the law to delay the implementation of the educational qualifications in the 2013 General Election.
But the question of academic qualifications arose again in a petition filed by Mr Mwau, the former Kilome MP, in January 2013.
In a November 1, 2013 judgment, Justice Isaac Lenaola (now a Supreme Court judge) ruled that post-secondary education is attainable, sufficient and constitutional. He said “to hold otherwise would be absurd after 50 years of independence”.
Judge Lenaola’s ruling was upheld by the Court of Appeal in November 2019.
The appellate court said that “setting standards in regard to education qualifications for leaders seeking positions of power and responsibility cannot be discriminatory, as it cuts across all the parties and those who do not qualify have an opportunity to first of all seek to attain the qualifications before vying for the offices”.
In January 2017, Section 22 of the Elections Act was amended to provide for a university degree qualification as a precondition for nomination for election and for political party lists for MPs and MCAs.
This amendment did not affect those seeking to be elected as President, Deputy President, governor and deputy governor as they have been required to hold the academic qualification since 2013.
However, the implementation of this law was delayed to apply in elections to be held after the 2017 polls.
But rights activist Okiya Omtatah sued to challenge the education qualification, claiming it was unconstitutional.
Mr Omtatah’s petition was thrown out by Justice Weldon Korir on February 27, 2020. The judge ruled that the issue of politicians’ educational qualifications had been put to rest by the High Court in the Muthama and Mwau cases. The judge added that the issue was settled by the Court of Appeal. BY DAILY NATION
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