Attorney-General Dorcas Oduor has asked the Court of Appeal to suspend a High Court order requiring President William Ruto to reconstitute his Cabinet to meet the constitutional gender rule, as the 120-day compliance period expires.
The AG is seeking an urgent hearing and a stay of the judgment delivered on June 30 by a split three-judge bench, pending determination of an intended appeal.
However, the application was not certified urgent by the Court of Appeal duty judge, who directed the government to serve the respondents and file proof of service.
The parties are required to exchange written submissions within 30 days from October 6. The matter is also yet to be fixed for hearing, leaving the Cabinet Secretaries exposed to a potential reshuffle if the President complies with the court decision.
“The matter raises questions of grave public interest affecting the entire Country. It is imperative to appreciate that Cabinet is responsible for key decisions making that are central in the running of the Government,” says the AG’s advocate Christopher Marwa.
In an affidavit, Principal Administrative Secretary in the Executive Office of the President Arthur Osiya says implementing the judgment before the appeal is decided could trigger Cabinet nominations, parliamentary vetting, appointments and administrative transitions that may be difficult to reverse.
“The application therefore seeks to preserve the position obtaining at the date of judgment pending appellate determination,” Mr Osiya says in the affidavit.
The government argues that the High Court’s decision could disrupt Cabinet operations and that the appeal could be rendered nugatory if the ordered changes are completed before judges decide whether the judgment was correct. It says a stay would defer the gender-representation remedy but that corrective action could still be taken if the judgment is upheld.
The Court of Appeal has yet to determine the request, and the directions issued so far deal with service and written submissions.
Attorney General Dorcas Oduor.
Photo credit: Dennis Onsongo | Nation Media Group
In the contested judgment, the High Court found that the Cabinet’s composition breached Article 27(8) of the Constitution, which requires that no more than two-thirds of members of appointive bodies be of the same gender.
At the time of judgment, the Cabinet comprised 25 members, including the President, Deputy President, Attorney-General and 22 Cabinet Secretaries. The court found 18 men and seven women.
The majority judges, Justices Eric Ogola and Stephen Githinji, directed the appointing authority to make appointments in compliance within 120 days and declared Article 27(8) “immediate, mandatory and fully enforceable” in appointive bodies, including the Cabinet. The deadline expired on October 28.
“The direction to make appointments within 120 days imposes a continuing obligation whose implementation may precede determination of the intended appeal,” says State counsel Marwa.
“The application therefore seeks to preserve the position obtaining at the date of judgment pending appellate determination and to prevent the identified consequences of implementing the disputed directive before the Court of Appeal has determined its validity.”
Justices Eric Ogola and Stephen Githinji had also found that the Constitution does not establish an official Opposition and does not bar the appointment of politicians affiliated with parties outside the governing coalition to Cabinet or other appointive State offices.
They held that the appointments were not unconstitutional on that ground and rejected the challenge to the inclusion of opposition politicians in the Cabinet.
The other judge in the bench was Justice Jairus Ngaah, who dissented on aspects of the majority’s reasoning, but agreed that the Cabinet violated the two-thirds gender rule.
He disagreed with his colleagues on the constitutionality of reappointing Cabinet Secretaries dismissed in July 2024 and appointing opposition politicians without a formal coalition agreement.
He would have declared the Cabinet invalid and ruled that the reappointments violated the Constitution and that the opposition appointments breached the Political Parties Act and the constitutional principle of multiparty democracy.
The Attorney-General challenges the finding that the Cabinet violates the gender rule, arguing that the judges failed to properly interpret Article 27(8) alongside Article 152, which provides for the Cabinet’s composition.
President William Ruto chairs a Cabinet meeting at State House, Nairobi.
Photo credit: PCS
The intended appeal also questions the rejection of progressive realization and argues that setting a mandatory deadline intruded on the Executive’s appointment powers and Parliament’s vetting role.
The government says it recognizes the constitutional importance of equality and gender representation but argues that a stay would preserve the subject matter of the appeal.
It says the respondents would not suffer irreversible prejudice because the remedy could be implemented later if the judgment survives appeal.
The dispute followed the formation of a broad-based Cabinet after President Ruto dismissed most of his Cabinet in July 2024 amid the Gen-Z protests over taxes and governance. The High Court upheld the challenged nomination, vetting and appointment processes, but found the Cabinet’s gender composition unconstitutional.
The application names governance activists Saitabao Ole Kanchory, Katiba Institute, Wanjiru Gikonyo, the Kenya Human Rights Commission and other petitioners as respondents.
It asks the Court of Appeal to preserve the position at the time of judgment until the intended appeal is determined, or to issue other interim orders it considers appropriate.
