The High Court in Machakos will today (Monday) start hearing a landmark case challenging the eligibility of Wiper party’s senatorial candidate Agnes Kavindu Muthama over alleged dubious academic qualifications.
With barely four days to the by-election scheduled for March 18, Ms Muthama is facing accusations of flouting the election laws by failing to present a post-secondary certificate to the electoral commission during her clearance to run for the seat.
The voters — Wilfred Manthi Musyoka and Philippe Sadja — have sued Ms Muthama alongside the Wiper party and the Independent Electoral and Boundaries Commission (IEBC).
Wiper party is listed as the first respondent in the case while Mis Muthama and the IEBC’s Machakos returning officer are the the second and the third respondents, respectively.
Post-secondary school qualifications
“That as is a matter in the public domain. I am aware that the second respondent is not qualified as she did not present, nor does she have any secondary qualifications to enable her acquire post-secondary school education qualifications,” Mr Musyoka claims in the suit papers seen by the Nation .
The two voters claim that the nomination of Ms Muthama by the Wiper party and the subsequent clearance by IEBC was unprocedural, unconstitutional and unlawful, hence it should be voided. They want the candidate disqualified from the senatorial race.
They argue that Section 22 of the Election Act, which was deleted and later substituted, provides that any aspirant for Member of Parliament must possess a minimum of post-secondary school qualifications.
IEBC was served on Thursday but received the complaint in protest saying it had been overtaken by events.
County Elections Coordinator Joyce Wamalwa said she acted within the law in clearing Ms Muthama and that the Wiper candidate satisfied all the necessary requirements of elections laws.
“At the moment, academic qualifications are not mandatory in elections because such requirements under the amended election laws will take effect during the 2022 general elections,” Ms Wamalwa told the Nation .
The controversy over the Wiper candidate’s academic qualifications has rekindled memories of how her former husband, Johnson Muthama, a primary school dropout, had to get court protection to contest the Machakos senate seat in the 2013 General elections.
In October 2011, Mr Muthama was the first litigant to challenge in court the constitutionality of the Elections Act 2011, which had just been passed by the National Assembly.
In his petition, Mr Muthama sought a declaration that the new law, which required MPs to have post-secondary education, was unconstitutional.
Mr Muthama told the court that he was worried that his ambitions to vie for elective office may be curtailed by provisions of the Elections Act because he had only attained primary school education.
“I attended Kyamulendu Primary School between 1963 and 1970 but could not get the benefit of secondary school education due to lack of school fees, and that the Elections Act will discriminate against me as it is inconsistent and in conflict with the Constitution,” he claimed then.
Justice Mumbi Ngugi, who heard the case, ruled that Sections 22 (1) (b) and Section 24 (1) (b) of the Elections Act 2011 which barred persons not holding a post-secondary qualification from being nominated as candidates for elective office or for nomination to Parliament, was unconstitutional and was in violation of the petitioners’ rights.
Ten years later, his estranged wife, who is running for the Machakos Senate, is facing a similar political dilemma and legal scrutiny over her academic credentials.
Lawyers and critics argue that a subsequent ruling in 2013 by Justice Isaac Lenaola and amendments to the election laws by Parliament in 2017 makes it mandatory for parliamentary candidates to have a university degree.
Justice Lenaola ruled that an MP or senator must understand the proceedings, nature of business being carried out and, most importantly, be in a position to make his or her contribution to the complex motions and debates in Parliament.
This was in regard to a petition which had been filed by politician John Harun Mwau against the IEBC.
After Justice Lenaola’s ruling, Mr Mwau went to the Court of Appeal, where the verdict was upheld, effectively quashing Justice Ngugi’s earlier ruling.
Ms Muthama has told several campaign rallies that she could not have been endorsed by President Uhuru Kenyatta and Wiper party leader Kalonzo Musyoka if she did not have the right credentials.
Lawyer Musyoki Kimanthi says IEBC cannot ignore the High Court and Court of Appeal rulings and that it will be absurd and legally simplistic to clear candidates without the right academic qualifications.
Mr Kimanthi explained that according to the General Provisions and Interpretations Act, where a written law has been amended by Parliament to enhance the purpose, the previous law — in this case the Elections Act 2011 — is to be read as part of the new law.
“In the intervening period before 2022, when the degree requirement will start operating, interpretation-wise, the earlier provision of post-secondary education, is applicable,” the lawyer explained.
