Kenya Court Gives President Ruto 120 Days to Fix Cabinet Gender Imbalance

(NAIROBI) – A three judge High Court bench has ordered President William Ruto to reconstitute his Cabinet within 120 days after finding that its current makeup violates the constitutional requirement that no more than two thirds of members be of the same gender.

The ruling, delivered on Tuesday, upheld nearly every other aspect of the President’s contested 2024 Cabinet reshuffle, including the reappointment of ministers he had earlier dismissed and the inclusion of opposition politicians in what he called a broad based government.

Justices Eric Ogola and Stephen Githinji formed the majority opinion. Justice Jairus Ngaah dissented on two central points.

The court declared that Article 27(8) of the Constitution “is immediate, mandatory and fully enforceable” in relation to appointive public bodies and cannot be treated as something to be achieved over time.

“The current Cabinet does not comply with Article 27(8) of the Constitution because more than two thirds of its members are of the same gender,” the court stated.

The judgment partly granted petitions filed by governance activist Wanjiru Gikonyo, the Kenya Human Rights Commission and the Katiba Institute. These petitions challenged appointments made after the President dissolved his entire Cabinet on 11 July 2024 in the wake of nationwide anti-government protests.

President Ruto later struck a political truce with the then opposition led by the late Raila Odinga. He subsequently appointed senior opposition figures, including Treasury Cabinet Secretary John Mbadi, Mining Cabinet Secretary Hassan Joho, Energy Cabinet Secretary Opiyo Wandayi and Cooperatives Cabinet Secretary Wycliffe Oparanya. He also appointed Attorney General Dorcas Oduor.

Petitioners argued that these appointments, alongside the return of several sacked ministers, violated the Constitution.

The court rejected all other major constitutional challenges. The judges ruled that the President acted within his powers when he reappointed Cabinet secretaries he had previously dismissed.

They said the July 2024 dissolution was a political decision and did not amount to findings of misconduct against individual ministers:

“The President is granted the power to appoint and dismiss Cabinet Secretaries,” the court held. “Political inconsistency and legal inconsistency are not synonymous.”

The judges found no constitutional duty for the President to explain why he reappointed ministers he had earlier removed. They noted that his address dissolving the Cabinet was political and contained no specific allegations of corruption or wrongdoing against any individual Cabinet Secretary.

The court also threw out arguments that appointing politicians from parties outside the Kenya Kwanza coalition broke the law. It stated that the Constitution does not establish an official opposition, nor does it bar persons from other political parties from serving in Cabinet or other appointive state offices.

The appointment of the Attorney General was also upheld. The court found that the Constitution does not require the position to be advertised and that no further appointment steps are needed beyond the constitutional process.

On Parliament’s role, the judges said the National Assembly met the required standards for public participation when vetting and approving Cabinet nominees. “The Constitution does not require a perfect process,” they said, adding that the parliamentary approval met constitutional standards.

The bench also dismissed claims that the Cabinet failed to meet requirements on regional balance, youth, persons with disabilities and marginalised groups.

It noted that a Cabinet limited to 25 members could not realistically reflect every part of Kenyan society and said some representation requirements are subject to gradual realisation.

Justice Jairus Ngaah disagreed with the majority on two key questions. He held that ministers dismissed on 11 July 2024 should not have been immediately reappointed because, in his view, the President had publicly tied their removal to performance failures.

“In nominating and reappointing members to the Cabinet that he had dismissed, the President acted contrary to Article 259 of the Constitution,” Justice Ngaah said.

He also concluded that appointing opposition politicians into Cabinet without a formal coalition or merger agreement under the Political Parties Act went against Kenya’s constitutional system of multiparty democracy.

Justice Ngaah acknowledged that his dissenting views did not change the final outcome. The only successful constitutional challenge remained the gender composition of the Cabinet.

The court gave the appointing authority four months to bring the Cabinet into line with the Constitution.