Will MPs again suspend the degree requirement in 2022?

Leaders eyeing MP and MCA positions but are not degree holders risk being locked out of the 2022 General Election.

Section 22 of the Elections Act 2012, which is expected to be enforced in the next elections, will make it mandatory for aspirants to have a university degree to get clearance by the electoral commission to contest.

Implementation of the law was postponed in the 2017 polls. 

Currently, the Elections Act only makes it mandatory for the presidential aspirant and running mate as well as governors and their running mates to be degree holders.

Although the implementation date of the law has been postponed several times, it is now set to take effect after the National Assembly in 2017 amended Section 22 of the Elections Act that prescribes minimum academic qualifications for elected leaders at both levels of government.

Some lawmakers do not meet the requirement and could end up being barred from defending their seats.

“A person may be nominated as a candidate for an election under this Act only if that person—is qualified to be elected to that office under the Constitution and this Act, and holds—in the case of a Member of Parliament, a degree from a university recognised in Kenya or in case of a Member of County Assembly, a degree from a university recognised in Kenya,” states section 22 of the Act.

“Notwithstanding subsection (1), this section shall come into force and shall apply to qualifications for candidates in the general election to be held after the 2017 General Election,” adds a section that suspended its implementation.

Already, MCAs are protesting plans to implement the law, saying the proponents of the Building Bridges Initiative (BBI) birthed through the Handshake between President Uhuru Kenyatta and ODM leader Raila Odinga have promised to remove the requirement by amending the section.

County Assemblies Forum (CAF) chairman Ndegwa Wahome said they will oppose the implementation of the law as it was not subjected to public participation before enactment.

He said implementation of the law would be akin to using the back door to deny voters their sovereign power to elect their political leaders.

“We have taken a very firm position that the sovereignty and power to elect belong to the people under Article 1 of the Constitution. We have said section 22 of the Election Act is subsidiary to Article 1,” said Wahome.

“If a section of the Elections Act was to be allowed to contradict the constitution, then there should have been serious public participation for the people to hand over their mandate of electing their leaders to certain bodies. We had an engagement with the BBI team and we were promised as MCAs that section 22 will be amended,” he added.

But Wahome says Section 22 of the Elections Act contradicts Article One of the Constitution that states: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.”

MPs academic qualifications. [Graphics: The Standard]

The Constitution also stipulates that this sovereignty can be exercised either directly or through their democratically elected representatives.

“The sovereignty of the people is supreme and there should be no other interventions to decide who is to be taken to the people for election,” said Wahome.

CAF has been a strong critic of Section 22 of the elections law and asked the BBI secretariat to have the law amended, pushed to 2027, or scrapped.

“Our position is that it should be removed completely and the sovereignty of electing people’s representatives be left to the people of Kenya. If the graduates are better leaders, they should be able to beat those who have not gone to school when they meet at the ballot,” said Wahome.

He vowed to move to court if the law is not amended.

“If there is no serious movement towards ensuring the Elections Act is amended, CAF actually has already given instructions to lawyers and we expect that we shall be moving to court,” he said.

Makueni Senator Mutula Kilonzo Jnr said those opposed to the law would once again scheme to have it suspended.

Kilonzo—who participated in the crafting of the law—said if implemented, close to 50 per cent of the current political leaders would be locked out of the country’s politics.

“I was in the committee that proposed the law in 2016. There are various arguments on both sides; arguments that you can’t put the degree requirement on governors alone when people who are over sighting them don’t have education. The other argument is that you can’t restrict leadership to those who have degrees,” he said.

The Minority Leader stated, “There is no guarantee that it will take effect. I suspect that there will be a push again to have it suspended. We are likely to have a raft of amendments to the House and this one could be one of them because if takes effects, about 50 per cent of those holding political seats will be locked out.”

He, however, vowed to push for its implementation to improve the quality of leadership in the country.

Former National Assembly Majority Leader and Garissa Township MP Aden Duale said those seeking political seats have to go to school.

“I participated in the enacting of that law and it remains my position that it takes effect in the next elections. It is the law,” said Duale.

Public Accounts Committee (PAC) Chairman Opiyo Wandayi and Nominated MP Godfrey Osotsi shared similar views insisting that the law has to take effect.

Mr Wandayi said those who do not meet the requirement should look for leadership positions outside politics.

“We need to enhance the capacity of our legislative assemblies to perform their constitutional functions. Level of education is a key factor in this,” he said.

“Not everybody should struggle to be in Parliament or county assembly. Others can exercise leadership elsewhere. It is a matter of choice,” he added.

Mr Osotsi said it was no longer tenable to have legislators with low education if people wanted quality debates and legislation.

“This time round the law should be implemented because the aspirants were given adequate time to acquire degrees. Second, it is no longer tenable to have legislators with low education if we want to improve quality of debates and legislation,” he said.

“In fact, we need to remove discriminatory aspects in law. Why do we require the president and governors to have degrees while those who oversight them have none,” the Nominated MP asked.

The concerns about the level of education among the top leadership came to the fore in late 2017 and 2018 when over 50 MPs had made no contribution in the National Assembly and had requested Speaker Justin Muturi to organise another induction to understand parliamentary procedures and practice.

Nine months after their election, MPs who were yet to make their maiden speech in the National Assembly — according to the Hansard, Parliamentary Broadcast Unit (PBU) and the Mzalendo.com, an online platform that keeps tabs on performing MPs in the House plenary — spoke only when they supported their colleagues but initiated nothing on their own. 

The revelation comes as the leadership of Parliament complained that some MPs were skipping the last legislative step that is crucial in law-making. 

“You will even hear others telling their constituents they have passed very good Bills yet the individuals making such statements do not attend sessions to contribute to the legislation they are talking about. The real law-making process starts at the Third Reading, where only a few participate,” said the Speaker then.