Sunday Nation 08 July 2012
A few days ago, the High court made a ruling on a controversial issue that had been exercising the minds of Kenyans for quite some time. Judge Mumbi Ngugi ruled that a requirement in the Elections Act requiring parliamentary candidates to have post-secondary education was unconstitutional. In the same ruling, she argued that an even higher educational standard for presidential and gubernatorial candidates was constitutional.
The judge anchored her reasoning on the prevailing socio-economic and political situation in the country and the nature of work required by the positions referred to in this case. On eligibility for office, she pointed out that the right of every adult Kenyan to participate in the political process would be infringed upon by the requirement for a high educational qualification for parliamentary candidates. She therefore ruled that this requirement would be unconstitutional.
Her opinion on presidential and gubernatorial candidates was that due to the limited number of these positions, and the complex nature of the work involved, these candidates could be required to have not only post-secondary education, but university degrees.
To put this whole argument into context, it should be clear that the constitution does not provide for a different set of educational, ethical and moral qualifications for candidates for any office, whether parliamentary, gubernatorial or presidential. In my opinion, therefore, Justice Ngugi’s differentiation of the two categories of aspirants is itself unconstitutional, and may be challenged in a higher court.
The court’s argument that since there are sections of the population that have not been exposed to higher education it would be discriminatory and therefore unconstitutional to require parliamentary aspirants to have such qualifications is similarly flawed. The constitution allows parliament to set the minimum educational, ethical and moral standards for all aspirants. It does not provide any limits to such standards.
It follows therefore that parliament, as the people’s representative, is empowered to consider what educational, ethical and moral standards are appropriate for the candidates. Enacting such legislation cannot, therefore, be unconstitutional!
It is difficult not to sympathise with the court’s position that in a country where almost half the population live in absolute poverty it would be unfair to require that anyone who wants to be an MP must have post-secondary education. The further assertion that, in a roundabout way, this requirement would discriminate against women and girls is one that merits active measures to address.
In actual fact, then, the court should have argued that the educational requirements for all posts are inherently unfair and potentially discriminatory, and that the government must take urgent measures to ensure that all those interested in higher education have access to it without discrimination. In this regard, Justice Ngugi’s ruling was a damning statement about pervasive poverty and inequalities in the Kenyan education system, rather than on the constitutionality of requiring higher education for aspirants.
In my view, this court overstepped its mandate by delving into socio-economic arguments that are the province of government policy and belong in the sphere of political party manifestoes. This ruling perpetuates the common Kenyan mantra that whatever is wrong or unfair must also be inherently unconstitutional. The assumption is that all constitutional provisions are fair and right, and that one only needs to use their gut feeling such that if something feels wrong or unfair, it is, of course unconstitutional!
Dr Lukoye Atwoli is the Secretary, Kenya Psychiatry Association and a Lecturer at Moi University's School of Medicine firstname.lastname@example.org; twitter @LukoyeAtwoli