The High Court has declared the provision of degree requirement for Members of Parliament (MPs) and Members of County Assembly (MCAs) aspirants unconstitutional.
Justice Anthony Mrima said that Parliament never invited the public to participate and proceeded to enact a discriminatory legislation.
According to Mrima, there was no evidence from the respondents in the case to rebut the allegation made by the petitioners that they failed to carry out public participation.
“Sections 22 (1) (b) of the Elections Act is unconstitutional and in violation of Article 10 (2) (a) of the Constitution for failure to undertake public participation,” the judge said.
He added that the impugned provision does not augur well with several constitutional provisions.
He said the provision offends Article 27 of the Constitution to the extent that it unfairly and without justification discriminates on the basis of professional or educational qualifications and also fails to treat every person equal before the law.
“The provision fails to take into account the category of people who, while already admitted to university, cannot graduate because of the global pandemic,” said Mrima.
Further, Justice Mrima said that subjecting all the candidates for the positions of MCA to a minimum university degree at once, prejudices the rights and fundamental freedoms of those not able to directly acquire the university degrees.
Section 22 (1) (b) (ii) of the Elections Act made it mandatory for aspirants for the position of MCA in the 2022 General Election to possess a degree from a recognised university.
According to the Independent Electoral and Boundaries Commission (IEBC), the enforcement of educational guidelines introduced pursuant to the enactment of Section 22 of the Elections Act was lawful and within their mandate.
Sheria Mtaani and Gloria Orwaba moved to court to petition the provision arguing that the law violates the constitution by introducing unnecessary hurdles for those seeking to vie elective posts.
Orwaba said that the implementation of the said law is discriminatory against many Kenyans who may qualify as good leaders by falling to recognise and equating various academic qualifications, trainings and other merits.