New laws that impose term limits on university student leaders has been dismissed by the High Court.
Among the changes introduced by the Universities (Amendment) Act 2016 is limiting the terms of office to two terms of one year each and barring students in the final year from offering themselves for election.
The changes also ensures gender parity because not more than two-thirds of either gender occupies the positions, as well as taking care of students with special interests.
The case was filed by 15 student leaders of Kenyatta University Students Association (Kusa) led by Samuel Were.
The students were offended by the changes arguing that it took away their powers to elect their leaders directly as it introduces an Electoral College system. They also argued that they were not involved in the proposed changes.
Through lawyer Stephen Gitonga, the Commission for University Education argued that it was necessary to limit the terms of student leaders and the amendments further ensured that the students’ leadership was aligned with national values and principles of governance.
To the contrary, none of the students’ rights were infringed because the students still have a right to vote and participate in elections, he argued.
Mr Gitonga told the court that stakeholders were invited to workshops on August 24, 2015 and another between September 22 to September 26, 2015.
Parliament, he added, also published a memoranda through a newspaper advertisement on February 25, 2016.
In a sworn statement, Ms Jacinta Kapiyo, the director of University Education, said the amendments allowed an inclusive approach to student leadership. She said the changes were prompted by the constant riots during students’ elections
She added that the Commission of Administrative Justice noted that there were external interference including politicians.
She also said the changes will ensure that there is student representation from all schools, faculties departments as well as satellite campuses through student council that derive power from the entire university.
“The universal suffrage ensures that the principle of one person one vote. Students in one college shall elect three representatives hence the college is elected through a universal suffrage, which brings equality,” Mr Gitonga argued.
In the decision, Justice Chacha Mwita said he sees no fault in the changes since there was indeed public participation before the law was amended.
That the new way of electing student leaders through an electoral college infringes on the political rights if students, because it takes away the students’ rights to elect their leaders, which is against the principle of universal suffrage.
The Judge said that if there is a limitation introduced in the amendments, it is justified since it is meant to achieve fair and equitable representation as well as orderly elections in universities.
“The changes modify the manner of election and introduce gender parity and national consciousness in the student leadership in the institutions of higher learning. The limitation if any, in my view of reasonable in the circumstances. It should not be lost that the amendments will have positive effect on representation,” he said.
The Judge added that the changes would also ensure leadership reflect the diversity of the people of Kenya.
“In other words the changes are aimed at achieving fair and inclusive representation in colleges, schools or faculties of each university and place term limits in elective positions. This would in my view, protect minority interests so that even colleges that have fewer students will feel fully represented, give equal say to campuses or schools and ensure as many students aspiring for leadership offer themselves for leadership,” he said.