Justice Anthony Mrima said for Parliament to have come up with an enactment in the nature of the impugned provision, there was a need for enhancive and collaborative public participation and stakeholder engagement.
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The High Court on Friday declared unconstitutional Section 22 of the Elections Act that requires MCA aspirants to have a university degree.
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.
Justice Anthony Mrima said for Parliament to have come up with an enactment in the nature of the impugned provision, there was a need for enhancive and collaborative public participation and stakeholder engagement.
“Public participation is a must in the process of enacting any legislation. Parliament must strictly adhere to that requirement for any of its legislation to gain legitimacy,” Mrima said.
He added that 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.
Mrima said the impugned provision failed to take into account the dictates of Article 56 of the Constitution regarding the rights of the minority and marginalised groups.
“The impugned provision does not augur well with several constitutional provisions. It offends Article 27 of the Constitution to the extent that it unfairly and without justification discriminates on the basis of professional or educational qualifications. It also fails to treat every person equal before the law,” Mrima said.
The court further held that the said provision fails to take into account the category of people who, while already admitted to university, cannot graduate because of the global pandemic.
Daniel Mutua, the sixth petitioner in the case, fell under this category. He hoped to graduate before the 2022 polls but as a result of the Covid-19 pandemic, he may not.
The court also took notice that most Kenyans are literally surviving from hand to mouth and the cost of the degree is not within the reach of the majority.
“Subjecting all the candidates for the positions of MCA to a minimum university degree at once, therefore, prejudices the rights and fundamental freedoms of those not able to directly acquire the university degrees,” Mrima said.
In the case, Sheria Mtaani, Gloria Orwoba and the County Assembly’s Forum moved to court through lawyers Danstan Omari, Kariuki Karanja and Charles Njenga arguing that the overall effect of the degree requirement would undermine the sovereignty of the people of Kenya by robbing the voters the right to vote for their desired candidate during the nominations leading to the 2022 General Election.
They claimed the former and current government have not made secondary and university education easily and freely accessible to Kenyans but has only made it constitutionally tenable to access basic education. The suits had been filed separately but were later consolidated.
The Independent Electoral and Boundaries Commission which was a respondent in the case argued that enforcement of educational guidelines introduced pursuant to the enactment of Section 22 of the Elections Act was lawful and within their mandate.
Edited by P.O