The constitutionality of mandatory academic qualifications for elective posts The case of Kenya
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This thesis studies the political right to stand for election also referred to as the right to candidacy in other regimes. In so doing, it evaluates the legal framework on political rights in Kenya with a bias of article 38 of the constitution and its underlying requirements set out in various other enabling legislations such as the Elections Act. The study sets out to assess the provisions of Kenya’s 2010 constitution in promoting political rights. The concepts, purpose and underpinnings of article 38 (3) shall be discussed. In particular, the study shall attempt to bring out an understanding of the verbatim “every adult citizen has the right, without unreasonable restrictions to be a candidate for public office and if elected, to hold public office”. In doing so, this study shall assess the various restrictions set out in the elections act but with a bias to the requirement set at section 22 of the Elections Act that any candidate need have a degree from a recognized university in order to stand for election for seats such as member of parliament, member of county assembly governor among others. An elaborate discussion of these and other legal provisions will be useful in drawing up what stands as a reasonable bar and what does not in respect of qualifying to stand for election in Kenya and in extension the constitutionality of these set indexes barring persons from fully enjoying their rights as set out in the constitution. The key issue being whether the set mandatory educational requirements are in breach of the democratic principles of equality, equity, social justice, inclusiveness, non- discrimination and participation of the people as set out at Article 10 of the constitution of Kenya by virtue of a presumed or real failure to take into account injustices and structural inequalities that have left many, especially in the rural areas, educationally disadvantaged.