Growing clamour to scrap degree requirement for politicians
Three Kenyans have filed a petition challenging the requirement of a university degree as a condition for being elected a ward rep or MP.
It is the latest attempt to scrap the higher academic qualifications that could lock out hundreds of aspirants.
The three, through petition number 014 of 2021 filed before Justice Mary Kasango at the High Court in Kiambu, name the Speaker of the National Assembly, the Attorney-General and the Independent Electoral and Boundaries Commission chairman as respondents.
Mr Paul Macharia, Mr Joseph Karanja and Mr David Kimani argue that the Speaker of the National Assembly (the first respondent), while executing House business, passed a motion together with members of the National Assembly in 2017 contrary to the spirit and the letter of Constitution 2010 that amended Section 22 of the Election Act, which prescribes the minimum academic qualifications for lawmakers at both levels of government, thereby blocking petitioners from exercising their constitutional right of public participation.
“That the petitioners further cite that having been left without any alternative to ventilate their dissatisfaction with the actions of the first respondent, Article 165 of the Constitution 2010 is the only avenue left,” reads the petition in part.
The three have further said the Attorney-General, while acting as the government and public adviser and defender in matters of litigation, has failed to challenge the unconstitutional move.
The petition notes that Article 38, which grants every citizen unfettered political rights to participate and make choices by either voting or vying for an elective office established by Constitution, was violated by the acts of the respondents, especially the Speaker of the National Assembly.
The petitioners argue that academic qualifications should not be used to violate the Constitution, adding that the electorate are bestowed with the right to make decisions through the ballot in both by-elections and general elections.
The petitioners further contend that university education is not compulsory in Kenya and that only less than three per cent of Kenyans have a degree.
They further contend that if the respondents were genuine, they ought to have first pushed for free and compulsory secondary and university education.
The three maintain that a university degree is merely an academic achievement that has no relevance to the principle of devolution.
The three further say administration and electoral duties should not be capped at university level, explaining that grassroots public administrators – chiefs, assistant chiefs and nyumba kumi officials – do not require any higher education to ensure harmonious co-existence among citizens.
The three applicants maintain public leadership is not about education but good morals and the Constitution.
The petitioners further accuse the Speaker of the National Assembly of violating Part Two of Chapter Four and mostly 27 of the Constitution of Kenya by acting within the precincts of Parliament to discriminate against them despite being cognisant that an act of Parliament, especially an amendment, cannot violate fundamental rights or supercede the provisions of the Constitution.
The respondents did not turn up or send their representatives for the hearing that was scheduled for yesterday at the High Court in Kiambu.
The court directed that the petitioners should file written submissions within 14 days and serve the three respondents with notice of hearing.
The matter will be heard on December 16.
The electoral agency is fighting similar petitions in the High Court.
IEBC has questioned the powers of the High Court to determine five petitions filed last month against the law requiring political aspirants to have a university degree.
The electoral commission 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 argued the court since 2013 dealt with three other cases similar to the current petitions and therefore it cannot determine the dispute again.
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 told the court in August.
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 maintained 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 has stated.
The electoral commission insisted 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”.
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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