Parliament to Appeal Ruling Declaring Cabinet Unconstitutional

The High Court of Kenya recently declared President William Ruto's Cabinet unconstitutional for failing to comply with the two-thirds gender rule enshrined in Article 27(8) of the Constitution. A three-judge bench found that the Cabinet, comprising 18 men and 7 women, falls short of the constitutional threshold requiring at least nine women for a 25-member body. The Court directed the President to reconstitute the Cabinet within 120 days to achieve compliance. In response, Parliament has announced its intention to appeal this landmark decision to the Court of Appeal, seeking to overturn the judgment and suspend its implementation, thereby setting the stage for a significant legal and constitutional battle over gender representation in Kenya's executive.

Kenya's constitutional commitment to gender equality faces another critical test following a recent High Court ruling that declared President William Ruto's Cabinet unconstitutional. The three-judge bench, in a judgment delivered on June 30, 2026, found that the current composition of the Cabinet, with a significant imbalance in gender representation, violates Article 27(8) of the Constitution of Kenya, 2010. This decision has far-reaching implications for executive appointments and underscores the judiciary's role in enforcing constitutional principles.

Parliament, through the Office of the Speaker, has swiftly moved to challenge this ruling, notifying the Court of Appeal of its intention to appeal and seeking a stay of execution of the High Court's directive. This appeal reignites a long-standing debate in Kenya concerning the practical implementation of the two-thirds gender rule across all arms of government. The outcome of this appeal will not only determine the immediate future of the Cabinet but also set a crucial precedent for constitutional compliance and gender mainstreaming in public service appointments.

The principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender is a foundational aspect of Kenya's 2010 Constitution, primarily enshrined in Article 27(8) and reiterated for elective bodies in Article 81(b). This constitutional imperative aims to address historical gender imbalances and promote inclusivity in governance. However, its implementation has consistently presented significant challenges, particularly within the legislative and executive branches.

Previous attempts to enforce this rule have led to various judicial interventions. Notably, the Supreme Court of Kenya issued an Advisory Opinion No. 2 of 2012, addressing the progressive realization of the gender principle in Parliament. Despite these pronouncements and subsequent High Court decisions, Parliament has struggled to enact the necessary legislative framework to fully actualize the rule, even leading to a Chief Justice's advisory in 2020 for the dissolution of Parliament due to non-compliance. This history highlights a persistent tension between constitutional ideals and the political will or practical challenges of implementation, setting the stage for the current legal challenge against the executive's composition.

The High Court's judgment, delivered by a three-judge bench comprising Justices E.K. Ogola, Stephen Githinji, and Jairus Ngaah, meticulously analyzed the composition of President Ruto's Cabinet. The Court determined that the Cabinet, consisting of 25 members (including the President, Deputy President, Attorney General, and Cabinet Secretaries), had 18 men and 7 women. This ratio translates to approximately 28% female representation, falling short of the constitutional requirement that mandates at least nine women in a 25-member body to satisfy the two-thirds gender principle. The judges explicitly declared that this composition violates Articles 10 and 27 of the Constitution.

Crucially, while declaring the Cabinet unconstitutional, the High Court exercised judicial restraint by declining to invalidate the appointments of the individual Cabinet Secretaries or nullify decisions already made by the Cabinet. Instead, it issued a directive requiring the President to reconstitute the Cabinet within 120 days to achieve compliance with Article 27(8). This approach aimed to avoid a constitutional crisis while upholding the supremacy of the Constitution. The Court also dismissed other challenges, such as those concerning regional balance and the reappointment of former Cabinet Secretaries, affirming that the only successful constitutional challenge related to gender composition.

Parliament's decision to appeal, spearheaded by National Assembly Speaker Moses Wetang'ula, indicates a potential challenge to the High Court's interpretation of the constitutional provisions or the feasibility of immediate implementation. Arguments on appeal might focus on the separation of powers, the practical difficulties of achieving the gender balance within the executive without expanding the Cabinet, or a different interpretation of the term "appointive bodies" in Article 27(8) as it applies to the Cabinet. However, the consistent judicial stance on the two-thirds gender rule, as seen in previous cases concerning parliamentary composition, suggests that the appellate court will likely scrutinize any arguments that seek to dilute this fundamental constitutional principle. The appeal also seeks to suspend the 120-day compliance period, which, if granted, would temporarily relieve the executive of the immediate pressure to reshuffle the Cabinet.

The High Court's ruling on the unconstitutionality of the Cabinet's gender composition marks a pivotal moment in Kenya's journey towards full constitutional compliance and gender equality. For legal practitioners, this case highlights the judiciary's unwavering commitment to upholding the transformative aspirations of the 2010 Constitution, particularly Article 27(8). The impending appeal will be closely watched, as its outcome will clarify the scope of judicial intervention in executive appointments and the practical mechanisms for enforcing the two-thirds gender rule.

Practitioners should advise clients on the potential for executive reshuffles and the broader implications for public sector appointments, emphasizing the need for constitutional fidelity in all state organs. The Court of Appeal's decision will undoubtedly shape future governance practices and could necessitate legislative or policy adjustments to ensure sustainable compliance with gender representation principles. This ongoing legal battle underscores that constitutional principles, however challenging to implement, are not merely aspirational but legally binding and enforceable.