In October 2011, former Machakos Senator Johnstone Muthama moved to court to challenge the constitutionality of the Elections Act 2011, which had just been passed by the National Assembly.
In his petition, Mr Muthama sued the Minister for Justice and Constitutional Affairs and the Attorney-General, seeking a declaration that the new law, which required members of Parliament to have post-secondary education, was unconstitutional.
Mr Muthama told the court he was apprehensive that his ambitions to vie for elective office may be curtailed by provisions of the Elections Act, because he only had primary level 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.
He argued that the law passed by the National Assembly, in which he was the member for Kangundo Constituency, was discriminatory, promoted inequity and inequality, and was inconsistent with the Constitution.
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 having post-secondary qualification from being nominated as candidates for elective office or for nomination to Parliament to be unconstitutional and in violation of the petitioners’ rights under the Constitution.
Ten years later, Mr Muthama’s estranged wife Agnes Kavindu, who is running in the Machakos senate seat by-election on a Wiper Party ticket is facing a similar political quandary and public scrutiny over questionable academic credentials.
With just eight days to the March 18 by-election, Ms Kavindu’s education background has come under sharp criticism from her political opponents, who accuse her of taking Machakos back to the Mulu Mutisya era.
The late veteran politician Mulu Mutisya had little education and could not speak English, yet he was an MP for nearly two decades. What he lacked in English language skills, he more than made up for with his sense of humour and oratory prowess in his mother tongue as well as in Swahili.
Like her estranged husband before her, Ms Kavindu’s candidacy is threatened with lawsuits seeking to have her disqualified.
Two voters yesterday sued Mrs Muthama alongside the Wiper party and the Independent Elections and Boundaries Commission’s returning officer for Machakos County arguing she lacked requisite academic papers.
Wilfred Manthi Musyoka and Philippe Sadja claim her nomination by Wiper party and the subsequent clearance by IEBC was unprocedural, unconstitutional and unlawful.
“That as is a matter in the public domain, I am aware that Agnes Kavindu 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 Nation .
The case which has been certified as urgent is set for inter-parties hearing at the High Court in Machakos on Monday.
Independent Elections and Boundaries Commission (IEBC) Coordinator Joyce Wamalwa however says she acted within the law in clearing Ms Kavindu and that the Wiper candidate satisfied all the requirements of election laws.
“At the moment, academic qualifications are not mandatory in elections because such requirements under the amended Elections laws will take effect during the 2022 General Elections,” Ms Wamalwa told the Nation .
But critics and lawyers argue that a subsequent ruling in 2013 by Justice Isaac Lenaola and amendments to the Election laws by Parliament in 2017 make it mandatory for parliamentary candidates to have university degrees, leave alone post-secondary qualifications.
In Petition 26 of 2013 filed by politician John Harun Mwau against the IEBC and the Attorney General, Justice Lenaola ruled that the work of MPs is too complex and requires higher education, as per the spirit of Article 99 of the Constitution.
“The nature of duties and functions of National Assembly and the Senate require higher educational qualifications, skills and wide exposure, which can only be gained through higher education” the judge had noted.
Justice Lenaola further ruled that an MP or senator must understand the proceedings and nature of business being carried out and most importantly, be in a position to make their contribution to the complex motions and debates in Parliament.
After Justice Lenaola’s ruling, Mr Mwau proceeded to the Court of Appeal, where the verdict was upheld, effectively quashing Justice Ngugi’s earlier ruling.
Efforts to get comments from Ms Kavindu were fruitless as her mobile phone went unanswered but she told several rallies over the weekend that she couldn’t be endorsed by President Uhuru Kenyatta and Wiper party leader Kalonzo Musyoka, if she didn’t have the right credentials.
Lawyer Musyoki Kimanthi says the 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 educational qualifications.
According to the General Provisions and Interpretations Act, where a written law has been amended by Parliament to enhance the purpose, the former law -- in this case the Elections Act 2011 -- is to be read as part of the new law.
The controversy over Ms Kavindu’s academic qualifications has rekindled memories of how her ex-husband, a primary school dropout, had to get court protection to contest the Machakos senate seat in the 2013 General Election.
Ms Kavindu’s main rival Mutua Katuku of Maendeleo ChapChap party says the Machakos by-election is about choosing the best suited candidate to replace the late Senator Boniface Kabaka, who had a doctorate in law.
