PRESIDENTIAL candidates could be barred from running if their parties knowingly nominate persons who are not eligible to stand for elective positions.
The significance of Section 72 in the Elections Act has just come to light after two ODM activists wrote to the ODM elections chairman Franklin Bett on January 4.
It presents a new dilemma for parties and their leaders as they hold their primaries next week. A candidate might be popular but have a criminal record or lack educational qualification (for governor).
The eventual consequence might be even greater than the disqualification of the candidate - it might be disqualification of the party's presidential candidate.
According to section 72(2) of the Elections Act, "where a political party knowingly nominates a candidate who does not meet the requirements of the constitution, the political party commits an offence and shall be disqualified from nominating a candidate in that election."
Section 72(4) then goes on to state that this can result in the disqualification of the party's presidential candidate.
"Where a political party under subsection (2) commits an election offence which the Commission (IEBC) considers to be of a grave nature or continuously repeats the offence, the presidential candidate of the political party shall not be eligible to contest in a presidential election," it states.
The qualification is that "the presidential candidate knowingly abets or aids in the election offence." However in Kenya, party leaders are directly or indirectly involved in almost all party nominations.
CORD presidential candidate Raila Odinga was last week warned that assistant minister Bishop Margaret Wanjiru does not have the university degree required to stand for the Nairobi Governorship.
"Our clients would not wish the party to put forward a candidate who will be disqualified by the IEBC and whose candidature poses a risk to the party," stated the January 4 letter from Ochieng, Onyango, Kibet and Ohaga on behalf of two ODM activists.
It now appears that the disqualification of Raila as a presidential candidate could even be the ultimate sanction for selecting Wanjiru.
The Commission for Higher Education rejected Wanjiru's theology degrees from Vineyard Harvester Bible College and the United Graduate College and Seminary International saying they are not recognised in Kenya or the USA.
The IEBC stipulates that all candidates for governor must be "a holder of a degree from a University recognized in Kenya." It is not only Raila who is faced with the challenge of ensuring that his party's nominees meet all legal requirements.
Jubilee presidential candidate Uhuru Kenyatta has also been under pressure to ensure that his TNA party's candidates meet the integrity standards.
In particular, there has been growing opposition over the likely nomination of Embakasi MP Ferdinand Waititu and his Makadara MP Mike Sonko.
Recently, the High Court dismissed a petition challenging the education qualifications of businessman Mary Wambui who wants to take over President Kibaki's parliamentary seat in Othaya on a TNA ticket.
The court left it to the IEBC to decide whether Wambui was qualified to contest. The Ethics and Anti-Corruption Commission is currently processing thousands of self-declaration forms that will determine the suitability of the various nominees.
The IEBC will not accept names of those that are not cleared by the EACC, even if their respective parties nominate them to stand for elective positions.