No more degree requirement for governor aspirants, High Court declares

degrees

Justice Anthony Mrima ruled on September 30, 2022 that the academic requirement is unconstitutional. 

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Governor aspirants do not need a university degree to be eligible, the High Court in Milimani Nairobi has ruled saying the education requirement is unconstitutional.

Justice Anthony Mrima said the qualification for the election of a county governor is similar to the eligibility for election for a Member of a County Assembly (MCA).

The judge said according to Article 180(2) of the Constitution, governor and MCA aspirants hold the same education qualifications hence the demand for university degree for those contesting for governorship seats is illegal.

As a result, the Constitutional court issued a declaration that Section 22(2) of the Elections Act, which requires a person nominated as a candidate for election of county Governor or deputy county Governor to be holder of a degree from a university recognised in Kenya, contravenes Article 180(2) of the Constitution.

He nullified the legal provision, which has been in existence since 2011 and was used in the 2013, 2017 and 2022 elections to lock out the tens of governor candidates for lack of the education requirement.

"A declaration is issued that Section 22(2) of Elections Act contravenes Article 180(2) of the Constitution by creating an avenue for differentiation between eligibility requirements between Members of County Assembly and County Governors, hence to that extent is unconstitutional," said Justice Mrima.

To forestall an avalanche of election petitions by governor aspirants who were ineligible for lack of a university degree, the judge says the declaration of unconstitutionality will take effect in the next general election (2027).

The declarations sprung from a petition filed by voter Victor Buoga who filed a challenge in June 2022 petitioning court  to quash the law that requires governor aspirants to be holders of a university degree.

Through lawyer Harry Stephen Arunda, the voter told court that it was illegal for the electoral agency to demand university degree certificates from persons nominated to contest for governorship seats.

Mr Arunda stated that Article 180(2) provides that for an aspirant “to be eligible for election as county governor, a person must be eligible for election as MCA.”

He said MCA candidates having been cleared by the electoral commission to contest without a university degree governorship aspirants also ought not to have been disqualified for lack of the same.

“The crux of the matter is the precondition placed by the Independent Electoral and Boundaries Commission (IEBC) for candidates vying for the election of County governors to conform to Section 22(2) of the Elections Act by having and producing academic degrees which is contrary to Article 180(2) of the Constitution,” said lawyer Arunda.

The nullified Section 22(2) of the Elections Act provides that “a person may be nominated as a candidate for election as President, Deputy President, county Governor or deputy county Governor only if the person is a holder of a degree from a university recognised in Kenya.”

Lawyer Arunda said the section of the Act, which was relied on the IEBC in demanding governor and their running-mates to have degrees, was unconstitutional and in contravention of Article 180(2) of the Constitution.

Quashed degree

“IEBC invoked Section 22(2) of the Act as a threshold for qualification of election for county governors. This is despite the clear provision of the Constitution that qualification of county governor candidature is pegged on the eligibility of election as a member of county assembly,” said Mr Arunda.

The basis of the petition was another judgment issued by the judge in October 2021 where the court quashed degree requirement for MCAs. In that judgment, Justice Mrima declared Section 22(1)(b)(ii) of the Elections Act unconstitutional.

“Since Section 22(1)(b)(ii) of the Elections Act was declared unconstitutional, it also rendered Section 22(2) unconstitutional for being inconsistent with Article 180(2) of the Constitution,” said lawyer Arunda.





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