The Senate Committee on Justice, Legal Affairs and Human Rights has recommended that Nominated Members of the County Assembly be residents of their respective counties following a petition filed in the House.
The Committee Chairman Hillary Sigei said section 34 of the Elections Act should be amended to provide that for one to be eligible for nomination to a county assembly, he/she needs to demonstrate that they are either a registered voter in any of the wards or has a demonstrated interest in the affairs of that county.
Sigei said the committee fully supports a petition filed by Laban Omusundi to the Senate which proposes the enactment of a clause in the electoral laws to ensure that all Nominated MCAs are voters and residents of the respective counties.
"In the Petition, Laban Omusundi averred that some nominated MCAs were serving in counties where they are not registered as voters therefore are unaware of the challenges and needs in those specific counties. This he noted, continues to deny indigenous people who are the voters and meet all requirements to be given nomination opportunities to serve the people effectively," said Sigei.
The Bomet Senator said that upon committal of the petition to the committee, the petitioner was invited to presented his arguments after which the committee invited responses and submissions from key stakeholders who it felt would enrich its consideration of the petition.
Sigei said that the committee received submissions from the Independent Electoral and Boundaries Commission (IEBC), the Office of the Registrar of Political Parties (ORPP), Political Parties Liaison Committee (PPLC), Kenya Law Reform Commission (KLRC), Council of Governors (CoG), and County Assemblies Forum.
"The committee observes that while it would not be appropriate to place requirements deemed too restrictive which would run counter to principles in the Constitution and electoral laws, it is equally important that Nominated MCAs have a level of connection with the concerned county, to effectively participate in the work of the assembly and in representation of the interests for which they have been nominated," said Sigei.
Omusundi told the committee that there has been public outcry on nominations of MCAs with some leaders serving in counties they are not registered as voters and therefore unaware of the challenges and needs in those specific counties.
The petitioner cited a person who participated in politics in Kiambu county is nominated in Turkana, Nairobi, Kericho, Nakuru, Kakamega, Muranga or Kajiado county assemblies.
Omusundi told the committee that this practice continues to deny the indigenous people who are the voters and who meet all requirements to be given nomination opportunities to serve the people effectively in their respective counties.
"The Senate should intervene on this matter to enact a clause in electoral laws that will make sure that all nominated MCAs are registered voters and residents of their respective counties that they are nominated into reflecting ethnic communities in those respective counties," said Omusundi.
The IEBC in its submission said in practice, it was a problematic regulation to implement as registration officers often had a difficult time establishing what would suffice as proof of residence with the requirement of residence for special seat nomination posing a similar challenge.
Highlighting the objects of devolution as set out in the Constitution, IEBC noted that the law envisions that the communities in a county manage their own affairs and that the marginalized groups are protected.
The Office of Registrar of Political Parties (ORPP) submitted that the Constitution appreciates the process of filling special seats in Parliament and county assemblies as an election while it does not provide for separate qualifications for persons who are elected to a county assembly either through gender top-up list or marginalized groups list.
"Residency in an electoral area is neither a ground to register as a voter nor to vie for an elective seat, this could be attributed to various reasons including change of job location, loss of jobs hence changes in residency, historical reasons as to why some Kenyans reside in urban areas but registered as voters in their rural are, as well as freedom of movement,"said the ORPP.
KLRC said the Constitution provides for special seat members and representatives of marginalized groups to promote inclusivity, diversity, and the protection of the rights and interests of traditionally underrepresented and disadvantaged communities.
KLRC argued that the requirement that elected or nominated individuals to political offices should be residents or registered voters in areas they represent was based on principles related to representation, accountability, connection to the community, preventing outside influence and legitimacy and trust.
PPLC submitted that the nomination of members is solely a preserve of political parties and nomination under the special elect category is reserved for special interest groups, therefore, political parties should be allowed to nominate individuals with relevant expertise.
"In the fulfillment of their mandate to national values, political parties should be allowed to nominate any Kenyan to county assemblies and any legislation otherwise would be encroaching on the mandate of political parties," said PPLC.
The CoG argued that the roles of MCAs include maintaining close contact with the electorate and consulting them on issues before the county assembly, presenting views, opinions and proposals of the electorate to the assembly, and providing a linkage between the assembly and the electorate on public service delivery and only MCAs resident in the county can discharge those functions.
The County Assemblies Forum submitted that the petitioner's emphasis on ethnic community representation may be well-intentioned but it may inadvertently promote divisions along ethnic lines, exclusion and favoritism among communities which may not foster unity and cohesion.
