In a shocking judgement issued by High Court Judge Anthony Mrima, Section 22(2) of the Elections Act that requires governors to have university degrees has been declared unconstitutional.
The judgement arises out of interpretation of Article 180(2) which aligns the qualifications for election as governor to that of a Member of County Assembly. In the court’s view, to the extent that there is no such requirement for one to possess a degree to be elected as an MCA, Section 22 “creates an avenue for differentiation” for qualifications, which is not contemplated by the law.
I expect that the judgement will be appealed for it flies in the face of other constitutional requirements including Articles 99 and 193 which allows Parliament to set educational standards for persons vying for public office. Though it addresses qualifications for MPs and MCAs this Article recognises the expectation that Parliament can require minimum educational qualifications for persons seeking election.
Article 180 just prescribes the minimum qualifications, assuming that Parliament can impose other reasonable requirements. The argument by the court that no specific educational qualifications were made for governors and that the educational qualifications for MCAs and governors should be similar is unduly textual and ignores the questions of their respective roles and responsibilities.
The judgement raises several issues about suitability for office relative to functions. The question of educational qualifications for elective office has been part of Kenya’s debate on suitability for office since the promulgation of the 2010 Constitution. In 2013 and 2017 elections, MPs enacted requirements for educational qualifications for MCAs and MPs but waived the requirement for the ensuing elections; no prizes for guessing why this was done.
While there has been no social consensus on the minimum requirements for MPs and MCAs, it has generally been accepted that the demands and functions of a governor’s office require, at the very minimum a university degree, and that from a recognised university!
Not to place too much value on formal education as an essential quality for leadership, but it beats logic to expect a chief executive of a county who has responsibilities to define and drive policy, oversee implementation for diverse programmes, oversee financial management relating to billions of shillings, to operate without need for any formal education.
The governor is also not just the chief executive of the county but also the voice of the county in external jurisdictions and is expected to navigate the arena of inter alia, foreign officials and development partners.
One may be the best of politicians but functions of the office of governor requires more than good politics. Interestingly, even the county executive committee members and the chief officers in the county are required by law to have degrees in recognition of the nature of functions that they undertake. You can imagine the dynamics of any county where the differential between the leader and their team is that stark. While this issue may look academic at this point, this is a country where money determines politics. I therefore have no doubt that some wealthy Kenyans who have no technical competence to guide the complexity of running counties will be on the ballot and will win. Woe unto the county and to the nation whose governor cannot make sense of the humongous responsibilities the office demands.
The judgement also forces us to discuss the differential manner in which we treat political leadership. While ordinary Kenyans must meet minimum educational requirements even for the most menial of civic jobs, political leaders are exempted from these “onerous” requirements.
To quote Dr Muthomi Thiankolu we have entrenched the misguided notion of exceptionalism for the political class. That this exceptionalism is affirmed by the Judiciary, which is required to take into account, not just the letter but the spirit of the law is unfortunate.
I pray that the appellate courts reject this judgement and ensure some modicum of quality in our political environment.