President William Ruto must reconstitute his Cabinet within 120 days after a three-judge High Court bench ruled on Tuesday that its composition violates the Constitution's two-thirds gender rule.
This even as the divided bench upheld his 2024 Cabinet reshuffle, the reappointment of ministers he had dismissed and the inclusion of opposition politicians in his broad-based government.
The court declared that 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. Majority judgment was by Justices Eric Ogola and Stephen Githinji while Justice Jairus Ngaah dissented.
The judges ordered the appointing authority, the President, to make appointments that bring the Cabinet into constitutional compliance within four months.
"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 declared.
It further held that Article 27(8) "is immediate, mandatory and fully enforceable" in relation to appointive public bodies and is not subject to progressive realisation.
The judgment partly allowed petitions filed by governance activist Wanjiru Gikonyo, the Kenya Human Rights Commission and Katiba Institute challenging Cabinet appointments made after President Ruto dissolved his entire Cabinet on July 11, 2024.
This was after nationwide anti-government protests and later reappointed several of the same ministers while bringing opposition politicians into government.
President Ruto made a political; truce with the late leader Raila Odinga, the then Opposition, and announced a broad-based government after dissolving the Cabinet.
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 the appointments of opposition politicians to Cabinet, alongside the reappointment of several dismissed ministers, violated the Constitution.
However, the High Court upheld the legality of the broad-based government while ordering the President to rectify the Cabinet's failure to comply with the two-thirds
The court rejected every other major constitutional challenge mounted against the President's actions.
The judges ruled that the President acted within his constitutional powers when he reappointed Cabinet secretaries whom he had earlier dismissed, saying the July 2024 dissolution was a political decision that 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 obligation requiring the President to explain why he reappointed ministers he had previously dismissed, noting that his address dissolving the Cabinet was political in nature and contained no specific allegations of corruption or misconduct against individual Cabinet Secretaries.
The court also dismissed arguments that appointing politicians from parties outside the Kenya Kwanza coalition violated the Constitution.
It declared that the Constitution neither establishes an official opposition nor bars the appointment of persons affiliated with political parties outside the governing coalition to Cabinet or other appointive State offices.
The judges further upheld the appointment of the Attorney-General, finding that the Constitution does not require the office to be advertised and that no additional appointment procedure is prescribed beyond the constitutional process.
On Parliament's role, the court found that the National Assembly met constitutional requirements for public participation during the vetting and approval of Cabinet nominees.
"The Constitution does not require a perfect process," the judges said, adding that the parliamentary approval process complied with constitutional standards.
The bench also rejected claims that the Cabinet's composition failed constitutional requirements on regional balance, youth, persons with disabilities and marginalised groups.
It said a Cabinet limited to 25 members could not realistically reflect every segment of Kenyan society and noted that some representation requirements are subject to progressive realisation.
"When the President frustrates the Constitution, it is the duty of the Court to rise up and safeguard the Constitution," he said.
Justice Ngaah held that ministers dismissed on July 11, 2024, should not have been immediately reappointed because, in his view, the President had publicly linked their removal to shortcomings in the Cabinet's performance.
"In nominating and reappointing members to the Cabinet that he had dismissed, the President acted contrary to Article 259 of the Constitution," he said.
He also concluded that appointing members of opposition political parties into Cabinet without a coalition or merger agreement under the Political Parties Act undermined Kenya's constitutional system of multiparty democracy.
Despite his disagreement, Justice Ngaah acknowledged that his views did not affect the outcome because they were outweighed by the majority decision, which left the gender composition of the Cabinet as the only successful constitutional challenge.
