Court orders Ruto to reconstitute Cabinet in 120 days over gender rule breach

The High Court has ordered President William Ruto to reconstitute Kenya’s Cabinet within 120 days after finding that its composition violates the Constitution’s two-thirds gender rule.

In a judgment delivered on Tuesday, a three-judge bench directed the President to ensure all Cabinet appointments comply with Article 27(8) of the Constitution, which requires that no more than two-thirds of members of an appointive body be of the same gender.

Justice Eric Ogola, delivering the ruling on behalf of the bench, ordered the appointing authority to make Cabinet appointments that conform with the constitutional gender principle within 120 days.

The judges found that the current Cabinet falls short of the constitutional threshold. They ruled that, for purposes of calculating compliance, Cabinet consists only of the President, Deputy President, Attorney General and Cabinet Secretaries as provided under Article 152(1), excluding the Secretary to the Cabinet.

Based on the current composition, the Cabinet has 25 members—18 men and seven women—meaning women occupy about 28 percent of the positions. The court held that at least nine positions should be held by the underrepresented gender to satisfy the constitutional requirement.

As a result, the bench declared the current Cabinet unconstitutional for failing to comply with Articles 27 and 10 on equality, inclusion and national values.

However, the court dismissed arguments seeking to invalidate the appointments of Cabinet Secretaries who were reappointed after the July 2024 dissolution of the Cabinet.

The petitioners had argued that reappointing some of the same ministers undermined the stated reasons for dissolving the Cabinet following nationwide protests and violated constitutional principles of leadership, integrity and accountability.

The judges disagreed, holding that dismissal from Cabinet does not automatically disqualify an individual from future appointment.

They clarified that a general dismissal under Article 152 is different from removal for violating Chapter Six of the Constitution, which deals with leadership and integrity. Constitutional disqualification, the court said, only arises where removal is based on specific constitutional violations rather than political or administrative restructuring.

The bench also rejected claims that the President was required to publicly explain why former Cabinet Secretaries were reappointed.

Nevertheless, the judges observed that reinstating ministers after dissolving the Cabinet over governance concerns could raise legitimate questions about the consistency and purpose of the earlier decision. They stressed, however, that political inconsistency does not necessarily amount to constitutional invalidity.

The court further upheld the legality of appointing opposition politicians to Cabinet under the broad-based government arrangement, finding that the Constitution does not bar such appointments as long as constitutional procedures and standards are followed.

At the same time, the judges cautioned that political inclusivity cannot be used to justify failure to comply with constitutional requirements on gender representation, accountability and good governance.