Senators against petition to limit nomination of MCAs to one term

Senators have expressed mixed reactions following a recommendation by the Senate Justice, Legal Affairs and Human Rights Committee to reject a petition by Nakuru-based human rights activist Laban Omusundi seeking to limit the tenure of nominated Members of County Assembly (MCAs) to one term.

The committee chairperson, Bomet Senator Hillary Sigei, told the House that, in Omusundi’s view, the absence of such legislation has led to the misuse of nomination slots by political parties and that what was previously used as a tool to achieve affirmative action has, in some instances, been abused.

“Some individuals have been nominated more than once at the expense of other deserving cases, in his petition Omusundi asks that relevant legislation be initiated to establish a legal framework limiting the tenure of nominated MCAs to a single term of five years,” said Sigei.

The Bomet Senator told the House that Omusundi’s concerns stem from the provisions of Articles 193 and 194 of the Constitution of Kenya, terming them legitimate because those provisions guide how nominations ought to comply with constitutional requirements.

He said that, for instance, Articles 142(2) and 180(7) of the Constitution impose term limits on the offices of President and Governor to a 10-year term, comprising two terms of five years each. Omusundi argues that similar legislation should be enacted for nominated MCAs to enhance the affirmative action objective that the nomination mechanism is aimed at.

Sigei said that upon receiving the petition, they engaged a number of stakeholders, including MCAs, Senators and other stakeholders in the political space, to determine whether it was necessary to legislate on the term limits. One of the issues they considered was a comparison with local practice in Kenya, the region and other jurisdictions to determine whether such legislation would be appropriate.

“We received varying positions, the issue of nomination is tied to political parties, even before the Constitution of 2010, nominations were largely the preserve of political parties, they remain so today, the reason we nominate individuals is at times to appreciate those who have contributed largely to the growth, development and support of a political party,” said Sigei.

He told the House that the nomination process ensures that those who participate in the political process but are unsuccessful in elections are still able to serve and represent the people and special interest groups and that, in Kenya, they are used to represent marginalised communities, the youth and other categories of persons who require representation.

Sigei told the House that while they acknowledge that this is an important petition, it also raises a critical issue of public interest. Apart from elected members, there is a need to have nominated members who represent special interests and specific groups within society.

He said that where a county assembly does not meet the constitutional gender threshold through elected members alone, a gender top-up list is used to attain the required representation. However, the question of whether political parties should be restricted to nominating an individual for only one term is one that the committee grappled with extensively.

“From the observations and the submissions that were analysed from various stakeholders, the Committee was convinced that we should not accede to creating that limitation of a timeline of a five-year single term or five years. However, as a rider, the political parties must ensure that in every nomination they make, they comply with the statutory provisions and the Constitution,” said Sigei.

Makueni Senator Daniel Maanzo told the House that they went through the petition, which simply asked that any nominated MCA be nominated once, or for one term, and that the justification given was not sufficient under the constitutional and statutory provisions in the Elections Act.

Maanzo said that all nominated MCAs in Kenya should know that the Senate and the Committee on Justice, Legal Affairs and Human Rights had said no to the proposal since they wanted it to remain open so that any person who serves a political party can be nominated as many times as that political party pleases, so long as they follow the Constitution and the existing statutory provisions.

“Limiting it to one term for Nominated MCAs is not tenable, we have the youth, people living with disability and a minority in a certain area like in a county,all that cannot be controlled and put down to just one term of nomination for MCA, as requested by Omusundi, we urge all Senators to support the position we have adopted,” said Maanzo.

Kakamega Senator Boni Khalwale said that Omusundi might have spoken about nominated MCAs, but he could as well have been referring to nominated Senators, Members of the National Assembly, Persons Living with Disabilities (PWDs) and the youth.

Khalwale said that this was a broader subject than the committee thinks, stating that this is a classical case where a single Kenyan has appreciated the intention of the Constitution, let alone an entire committee wondering why one individual should be nominated more than once.

“The population of women who are competing for nomination in Kenya is 52 percent, the population of youth competing to be nominated is 35 percent, the population of PWDs competing for nomination is 2.7 million people, how can we with such a huge pool of deserving Kenyans, nominate anybody more than once? When will the others benefit,” said Khalwale.

Machakos Senator Kavindu Muthama told the House that it is good to nominate people and they should not limit their terms. However, she advised them to go out there, campaign and be elected because it is more powerful to be elected than to be nominated.

“Yes, you can legislate, but when it comes to voting, you have no power to vote, It is okay for them to be nominated even ten times because for one to be nominated, she must have served the party, some of them actually campaigned even more than the people who are on the ground,” said Muthama.

The Senate Majority Leader, Aaron Cheruiyot, said the committee made the right decision to reject the proposal to limit the nomination of MCAs to only one term since it was important to grant people the opportunity and that, for someone to go beyond the second to third term, then you must be having very unique and rare skills.

“I have come to know that managing the affairs of a political party is a totally different ball game to running and campaigning. If there are people who have carved out that area as their area of expertise, that they lend their competence in either electoral disputes area, managing nominations or going around with party leaders and things like that, grant them the opportunity to be nominated,” said Cheruiyot.