High Court has declared a law requiring all Member of County Assembly (MCA) aspirants to have university degrees unconstitutional.
In his judgement, Justice Antony Mrima on Friday afternoon has declared the amendment of the law (Elections Act) by Parliament in 2015 unconstitutional saying that there was no public participation.
"The petition hereby succeed and a declaration issued that section 22 (1)(b) of the election act is unconstitutional and in violation of Article 10 (2)(a) of the Constitution for failure to take public participation," Mrima ruled.
"A declaration be and hereby issued that section (1)(b) of the election act is unconstitutional and in violation 22,27,38(3) and 56 of the Constitution. An order is hereby issued that section 22(1)(b)(2) of the election act is inoperational as it has no legal effect and is null and void."
The decision comes after several petitions were filed by the County Assembly Forum and six others arguing that the law that was set to take effect in the 2022 polls requiring contestants for County Assembly (MCA) seats to have university degree qualifications is unconstitutional.
Through their lawyer Tom Ojienda, the MCAs claim that parliament should have not set the same criteria as that of MPs, Governors and the president given 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,” he argued.
The lawyer submitted that taking into account the last population census, some counties and wards will miss representation if the amendment is upheld.
He singled out Mount Elgon in Bungoma County, which he said does not have a single MCA who is a graduate.
Ojienda further told Justice Mrima that MCAs do not earn the same salaries or perform the same functions as their superiors.
There was no public participation conducted by Parliament before the law was passed, as required by the law, they argued.
Prof Ojienda pointed out that illiterate Kenyans who are the majority could not support the amendment as this could deny them the right of representation to the county assembly.
However, IEBC asked Court to dismiss the case 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 qualifications," says the polls agency.
The commission further asked the court to uphold the presumption of constitutionality of the impugned section 22 of the Election Act pending the hearing and determination of the petition.
It says that removing education qualifications for all elective and nominated positions would also run contrary to the constitution which requires parliament to enact legislation on such qualifications.
“It is not correct that potential candidates for the positions of MCA’s will be locked out of the 2022 general election if the operationalization of section 22 (1) (b) of the elections act is not stayed," says the Commission.
Similarly, they argue that it is not correct that MCAs perform unique roles deserving differentiated qualifications