70 election the candidate seeks to be nominated in; (vii) Being a state officer or public officer: State and public officers are, by dint of section 43(5) of the Elections Act, under a duty to resign from state/public office at least 6 months before the date of the general election. However, the President, Deputy President, Governors and their Deputies, Senators, Members of the National Assembly and Members of the County Assembly are exempted by operation of section 43(6) of the Elections Act and do not need to resign prior to elections; (viii) Being found to have misused or abused a state or public office or contravened Chapter 6 of the Constitution (Article 75(3) of the Constitution); (ix) Owing allegiance to a foreign state: Whereas Article 137(2) of the Constitution (as read with Article 148(1) of the Constitution) expressly list this as one of the disqualifications from nomination as a presidential/deputy presidential candidate, the Constitution is silent on the other elective positions. However, the wording of the Oaths of Office subscribed to by the elected leaders commit them to the sole allegiance of Kenya; and (x) Direct or indirect participation in any public fundraising or harambee within 8 months preceding a general election or during a general election. However, this prohibition does not apply to candidates’/political parties’ fundraising. (Articles 99(2), 137(2), 148(1) of the Constitution and sections 23(2), 24(2), 25(2) & 26 of the Elections Act) 3.5.3.2 However, persons cannot be deemed disqualified pursuant to the above provisions unless all possibility of appeal or review of the relevant sentence or decision have been exhausted (Commission on Administrative Justice v John Ndirangu Kariuki & IEBC, Constitutional Petition No. 408 of 2013; Republic v IEBC & Another Ex Parte Paul Karungo Thang’wa Judicial Review No 2 of 2022 (unreported)). Editorial Note: In relation to independent candidates, the court ruled in Free Kenya Initiative & 6 Others v IEBC & 4 Others; Kenya National Commission on Human Rights (Interested party) Constitutional Petition E160 of 2022 that the requirement in Regulations 24(2)(c), 28(2)(c), 32(2)(c) and 36(2)(c) of the Elections (General) Regulations, 2012 requiring independent candidates to supply copies of the identity cards of their supporters alongside signatures was discriminatory as it was not required of political party candidates and it was, therefore, unconstitutional. The High Court in John Harun Mwau v IEBC & Another, Constitutional Petition 26 of 2013, ruled in 2013 that there was nothing arduous or discriminatory about these requirements. Moreover, the Court ruled that the requirement to provide copies of supporters’ identity cards contravened Article 31 of the Constitution and the Data Protection Act. The decision of the High Court was stayed pending appeal at the time of finalising this Bench Book. 3.5.4 Educational requirements 3.5.4.1 Eligibility arising from educational requirements is included in Article 99(2) of the Constitution as read with section 22 of the Elections Act, 2011. Degree requirements for elective office were first introduced in 2011 with the aim of being implemented in the 2013 general elections. When section 22(1)(b) was first crafted, it required all candidates for elective office to hold a postsecondary school qualification recognised in Kenya. The term ‘post-secondary qualification’ BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION