Inside court ruling which ordered university degree not required for election aspirants

This story has significance for readers across Kenya and beyond.

Inside court ruling which ordered university degree not required for election aspirants

The Independent Electoral and Boundaries Commission (IEBC) confirmed that the absence of a university degree will not, in itself, bar any Kenyan from seeking elective office in the 2027 General Election.

IEBC Commissioner Ann Nderitu during an interview on August 23 said the commission currently has no legal basis to enforce a university degree requirement for candidates seeking the presidency, governorship or parliamentary seats following a 2022 High Court ruling that invalidated the statutory degree requirement for parliamentary candidates.

The consolidated constitutional petition determined on April 13, 2022 arose from the Election Laws (Amendment) Act, No. 1 of 2017, which introduced Section 22(1)(b)(i) of the Elections Act.

The provision made a university degree from a recognised institution in Kenya a mandatory condition for nomination to Parliament and placement on political party lists.

2022 ruling

However, the petitioners challenged the requirement on constitutional grounds, arguing that it restricted political rights and discriminated against large sections of the population.

They relied, among other provisions, on Article 10 on national values, Article 24 on limitation of rights, Article 27 on equality and non-discrimination, Article 38 on political rights and Article 56 on minorities and marginalised groups.

The respondents, including Parliament, the Attorney General and IEBC, argued that the issue had already been determined in earlier cases and that the petitions were premature because Parliament was considering bills to repeal the requirement.

Justice Anthony Mrima rejected those arguments. He found that earlier cases concerned different provisions and that another case had not reached the merits.

The judge also held that legislative proposals did not prevent the High Court from determining whether legislation complied with the Constitution.

At the centre of the case was whether requiring a conventional university degree was a reasonable and constitutional limitation on the right of Kenyans to participate in elections.

Limited number of degree holders

The court examined the 2019 Kenya Population and Housing Census, which showed that only about 1.2 million Kenyans, roughly 3.5 per cent of the population, held university degrees.

A quarter of degree holders were concentrated in Nairobi, while some areas had no university graduates.

Justice Mrima found that enforcing the requirement in those circumstances could effectively exclude most Kenyans from contesting parliamentary seats and could even leave some constituencies without eligible local candidates hence affecting political participation and representation.

The court also considered the cost and accessibility of university education. It found that a blanket degree requirement could disadvantage citizens unable to afford university education and amount to discrimination based on socio-economic status and educational qualification.

Kenya National Qualifications Framework Act pathways

The judges further considered alternative pathways under the Kenya National Qualifications Framework Act, which provides mechanisms for recognising, assessing and equating different forms of training and experience.

The court found that the disputed provision ignored such alternatives instead of considering less restrictive ways of establishing competence.

Also, the court considered COVID-19 disruptions that delayed university programmes and graduation for some students.

Another major issue was public participation. The court held that the degree requirement had not been subjected to adequate public participation as required under Article 10.

Given its far-reaching consequences, Justice Mrima said meaningful participation required broader stakeholder engagement and consideration of Kenya’s educational and socio-economic realities.

The High Court ultimately declared Section 22(1)(b)(i) unconstitutional, finding that it violated Article 10(2)(a), as well as Articles 24, 27, 38(3) and 56.

"An order hereby issues that section 22(1)(b)(i) of the ElectionsAct is inoperational, of no legal eectand void ab initio. For clarity, the requirement thata person must possessa degree from a university recognized in Kenya to qualify to be a Member of Parliament in Kenya is hereby nullifed," the ruling reads.

Prescription of educational qualifications by Parliament

The Constitution still contemplates educational qualifications for elective positions, with Parliament expected to prescribe them.

However, the specific university degree requirement struck down by the High Court cannot currently be enforced.

Commissioner Nderitu said any attempt to introduce such a requirement again would have to go through the proper legislative process and public participation.

“Unless now, maybe somebody will go to court, or we then start the process of public participation and now allow the degree process now to come through the proper public participation, and what Kenyans will return, the verdict Kenyans will return upon public participation, then we go by that,” she said.

The 2022 ruling did not however establish that educational qualifications are irrelevant to elective office.

Justice Mrima observed that university education or recognised equivalents could become increasingly important as the responsibilities of elected officials grow.

His concern was that the 2017 requirement had been introduced without adequately considering Kenya’s circumstances and without following the constitutional requirements for public participation.

Reporting originally appeared via Pulse Live Kenya. Read the full source for additional context.