The High Court has declared as unconstitutional a law that makes it mandatory for aspirants of Member of County Assembly (MCA) positions to have a university degree.
Justice Anthony Mrima has found that Sections 22 (1) (b) (ii) of the Election Act is invalid and in violation of the constitution for failure to undertake public participation.
He issued a declaration that the law is inoperative, of no legal effect and is void from the beginning.
According to the judge, the law was not well thought out as it puts aspirants of all positions at par while they perform different duties and have different perks.
In equating the academic qualification of all the electoral positions at par without any differentiation and without regard to responsibilities and disregarding the differences in remunerations and salaries, the law runs contra to various provisions of the Constitution.
The disputed law requires all those willing to vie for President, deputy president, governor, senator, member of parliament and member of county assembly are required to a minimum of a university degree as the academic qualification.
No doubt responsibility bestowed upon each of the holders of the offices differ, said the judge.
“It can only be logical to have different academic qualifications at least for the lower cadre of the representatives of the people –MCAs. As I make this statement, I must be clear that I am not short of the position that university education or equivalent are not necessary for those seeking the position of MCAs. Not at all,” said the judge.
He was ruling on five petitions filed by different individuals and entities led by the County Assemblies Forum (CAF).
Through lawyer Charles Njenga, the group argued that Parliament should have not set the same criteria as that of MPs, Governors and the president given their roles and functions are different.
Mr Njenga told the court that out of the total number of members of county assemblies presently serving, being 2250, only 30 percent are holders of university degrees.
Accordingly, over 70 per cent of the current MCAs are ineligible to vie for re-election to their positions in the general elections scheduled for the year 2022 if the disputed law is allowed to operate.
“The uncontroverted unique social economic factors that obtain in the Republic of Kenya amongst the various demographics within the country render the requirement of a university degree for one to be elected as an MCA untenable and unfair to potential candidates and the wider public,” said lawyer Njenga.
He added that according to the 2019 National census report, only 3.5 per cent of Kenyans are holders of a university degree and thereby leaving the vast majority of the citizenry ineligible to vie for leadership positions at this or any level under our constitutional dispensation.
The practical implication of the law is that hence, leadership would be the preserve an elite group of citizens who are fortunate enough to have had access to university education.
“Procuring a degree qualification through university education is an expensive venture with an average conservative total cost outlay of at least Sh1 million for most of the available courses,” said Mr Njenga.
The lawyer argued that whereas the Higher Education Loans Board strives to facilitate part of the students on payment of these costs, the cost of university education still remains out of reach of the majority of Kenyans.
Further, according to the Commission for University Education Report on University Statistics, 2017-2018, for the said period, only 454,826 students had enrolled for university education in all the universities in Kenya in that period, out of a total population of over 50 million.
