The Supreme Court has declared an unconstitutional law requiring all candidates for the County Assembly (MCA) to have a university degree.
In his ruling, Judge Antony Mrima on Friday afternoon announced a constitutional amendment (election law) by Parliament in 2015 unconstitutionally, claiming that there was no public participation.
“A request has been made and a declaration has been issued that Section 22 (1) (b) of the Electoral Act is unconstitutional and violates Section 10 (2) (a) of the Constitution for lack of public participation,” Mrima said.
A declaration has been issued that Article (1) (b) of the Electoral Act is unconstitutional and violates 22,27,38 (3) and 56 of the Constitution. An order has been issued that Section 22 (1) (b) (2) of the Electoral Act does not apply as it has no legal effect and is meaningless.
The move comes after several requests were submitted by the County Assembly and six others arguing that the law that should come into force in the 2022 elections requiring candidates for County Assembly (MCA) seats to have university degrees is unconstitutional.
Through their lawyer Tom Ojienda, the MCAs argue that parliament should not set the same criteria as for MPs, governors and presidents who are given different roles and responsibilities.
“If the said law is respected, up to 70% of MCAs will not be allowed to participate in elections because they lack diplomas,” he said.
The lawyer said that as a result of the recent population census, some counties and suburbs will lack representation if the amendments are complied with.
He discovered Mount Elgon in Bungoma County, which he says does not have a single MCA graduate.
Ojienda further told Judge Mrima that MCAs do not receive the same salaries or do not work the same as their superiors.
There was no public participation led by Parliament before the law was passed, as required by law, they said.
Professor Ojienda stressed that the majority of illiterate Kenyans cannot support the reform as it could deprive them of the right to representation in the county legislature.
However, the IEBC asked the court to dismiss the case, saying it would be absurd to remove all educational qualifications.
“Standards set by parliament under section 22 of the electoral law cannot be discriminatory because it applies to all persons and those who do not meet the conditions are able to seek first recognition,” the electoral body said.
The commission further asked the court to consider the constitutional validity of Article 22 of the Electoral Act pending the outcome of the appeal.
He says removing academic qualifications for all elected and appointed positions would also violate the constitution which requires parliament to legislate on those qualifications.
“It is not true that candidates for MCA positions will be excluded from the 2022 general election if the implementation of Section 22 (1) (b) of the electoral law is not suspended,” the Commission said.
Similarly, they argue that it is incorrect that MCAs fulfill unique roles that deserve unique merit.