Ask a lawyer:
nominated mca requirements law
Introduction
In Kenya, the role of a Member of the County Assembly (MCA) is crucial in the governance and administration of county governments. MCAs are responsible for legislation, representation, and oversight within their respective counties. There are two types of MCAs: elected and nominated. This response will focus on the requirements and qualifications for nominated MCAs as stipulated by Kenyan law.
Table of Contents
Overview of Nominated MCAs
Constitutional and Legal Framework
The Constitution of Kenya, 2010
The Elections Act, 2011
The Leadership and Integrity Act, 2012
Qualifications for Nominated MCAs
Citizenship and Voter Registration
Educational Requirements
Moral and Ethical Requirements
Political Party Nomination
Case Laws and Legal Precedents
High Court Ruling on Educational Requirements
Relevant Case Laws
Conclusion
TLDR
1. Overview of Nominated MCAs
Nominated MCAs are individuals appointed by political parties to represent special interest groups such as women, youth, persons with disabilities, and marginalized communities in the county assemblies. Unlike elected MCAs, nominated MCAs do not go through the electoral process but are selected based on party lists submitted to the Independent Electoral and Boundaries Commission (IEBC) before the general elections.
2. Constitutional and Legal Framework
2.1 The Constitution of Kenya, 2010
The Constitution of Kenya, 2010, provides the foundational legal framework for the nomination of MCAs. Article 177(1)(b) and (c) of the Constitution stipulates that county assemblies should consist of:
Members elected by the registered voters of the wards.
The number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender.
Members of marginalized groups, including persons with disabilities and the youth, as prescribed by an Act of Parliament.
(Source: Kenya Law Reports ↗)
2.2 The Elections Act, 2011
The Elections Act, 2011, further elaborates on the nomination process and the qualifications required for nominated MCAs. Section 34 of the Act mandates political parties to submit party lists to the IEBC, which include nominees for special seats.
(Source: Kenya Law Reports ↗)
2.3 The Leadership and Integrity Act, 2012
The Leadership and Integrity Act, 2012, outlines the moral and ethical standards that all public officers, including nominated MCAs, must adhere to. This Act ensures that nominees meet the integrity standards required for public office.
(Source: Kenya Law Reports ↗)
3. Qualifications for Nominated MCAs
3.1 Citizenship and Voter Registration
To qualify as a nominated MCA, an individual must:
Be a Kenyan citizen for at least ten years before the election.
Be a registered voter.
These requirements ensure that nominees have a vested interest in the governance of their county and are familiar with the local issues and electorate.
(Source: Tuko ↗)
3.2 Educational Requirements
Initially, Section 22 of the Elections Act required MCAs to hold a university degree. However, this requirement was declared unconstitutional by the High Court in 2022 due to a lack of public participation during its enactment. Therefore, as of now, there is no mandatory educational requirement for nominated MCAs.
(Source: AfroCave ↗)
3.3 Moral and Ethical Requirements
Nominated MCAs must meet the moral and ethical requirements as stipulated under the Leadership and Integrity Act. This includes:
Not owing allegiance to a foreign state.
Not being a public officer or acting in any state or public office other than a member of the county assembly or national assembly.
These requirements ensure that nominees uphold the highest standards of integrity and are solely committed to serving their county.
(Source: Education News Hub ↗)
3.4 Political Party Nomination
Nominated MCAs must be nominated by a political party. The party lists submitted to the IEBC must include nominees for special seats, ensuring representation of marginalized groups. The nomination process within the party must be transparent and adhere to the party's constitution and nomination rules.
(Source: Kenyalogue ↗)
4. Case Laws and Legal Precedents
4.1 High Court Ruling on Educational Requirements
In 2022, the High Court declared Section 22 of the Elections Act, which required MCAs to have a university degree, unconstitutional. The court ruled that there was no public participation when Parliament enacted the provision, thus violating the principles of democracy and inclusivity.
Case: High Court Ruling on Section 22 of the Elections Act
Outcome: The requirement for a university degree was nullified.
(Source: AfroCave ↗)
4.2 Relevant Case Laws
Civil Petition 4 of 2015
Parties: Daisy Kirigo Maitho & Others v. County Government of Laikipia & Others
Issue: The petitioners, who were nominated MCAs, challenged the constitutionality of certain actions by the county government.
Outcome: The court upheld the rights of the nominated MCAs, emphasizing the importance of adhering to constitutional provisions.
(Source: Kenya Law ↗)
Election Petition 1 of 2017
Parties: A nominated MCA from Baringo County challenged the nomination process.
Issue: The petitioner argued that the nomination process was flawed and did not adhere to the party's rules.
Outcome: The court ruled in favor of the petitioner, highlighting the need for transparency and adherence to party rules in the nomination process.
(Source: Kenya Law ↗)
Conclusion
The role of nominated MCAs in Kenya is vital for ensuring representation of marginalized groups in county assemblies. The qualifications and requirements for nominated MCAs are outlined in the Constitution of Kenya, the Elections Act, and the Leadership and Integrity Act. These legal frameworks ensure that nominees are Kenyan citizens, registered voters, and meet the moral and ethical standards required for public office. Recent legal precedents have also shaped the nomination process, ensuring it is transparent and inclusive.
TLDR
To become a nominated MCA in Kenya, one must be a Kenyan citizen for at least ten years, a registered voter, meet moral and ethical standards, and be nominated by a political party. There is no mandatory educational requirement following a High Court ruling in 2022.
Sources
Answered by mwakili.com