The Court of Appeal has declined to certify as urgent an application by the Attorney General seeking to suspend a High Court judgment declaring Kenya’s Cabinet unconstitutional for failing to comply with the two-thirds gender rule.
The appellate court instead directed the parties to serve and exchange submissions within 30 days, as the state challenges the June 30 judgment requiring the government to ensure Cabinet appointments comply with the constitutional gender requirement within 120 days.
The Attorney General is challenging the decision by a three-judge High Court bench that found the Cabinet’s composition in violation of Article 27(8) of the Constitution, which requires that no more than two-thirds of members of appointive bodies be of the same gender.
In an application filed under Rule 5(2)(b) of the Court of Appeal Rules, 2022, the Attorney General is seeking orders to stay the operation, implementation and enforcement of the judgment pending the hearing and determination of an intended appeal.
The State argued that implementing the judgment before the appeal is determined could disrupt government operations and interfere with the constitutional functions of the Executive.
In a supporting affidavit, Principal Administrative Secretary in the Executive Office of the President Arthur A. Osyia said compliance would require changes to Cabinet membership through nominations, parliamentary approval, appointments and administrative transitions.
He warned that implementing the changes before the appeal is heard could alter the very composition of the Cabinet that is at the centre of the dispute, potentially making it difficult to reverse the consequences if the State succeeds on appeal.
The Attorney General is also challenging the High Court’s interpretation of Articles 27(8) and 152 of the Constitution, arguing that the court failed to properly consider the constitutional framework governing the formation of the Cabinet.
The State further contested the High Court’s rejection of progressive realisation as a basis for its position, and argues that the 120-day deadline improperly intrudes on the constitutional functions of the Executive and the appointment process involving the National Assembly, contrary to the separation of powers.
The High Court judgment arose from consolidated constitutional petitions challenging the nomination, approval and appointment of Cabinet Secretaries and the Attorney General. Justices E.K. Ogola and Stephen Githinji delivered the majority decision, while Justice Jairus Ngaah dissented.
The Attorney General has already lodged a Notice of Appeal and is seeking a stay of the judgment.
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