By Racheal Kerubo
A three-judge High Court bench has ruled that President William Ruto’s Cabinet is unconstitutional, finding that its gender composition breaches the two-thirds rule in Article 27(8) of the Constitution. The judgment, delivered June 30 by Justices Eric Ogola, Stephen Githinji and Jairus Ngaah, is the latest in a decade-long series of rulings on the same issue. The Cabinet, as constituted, had 25 members, 18 men and 7 women, putting men at 72 percent, above the roughly 66.7 percent ceiling the Constitution allows.
Speaking during an interview, Daniel Murakaru, an advocate with the Kenya Women Parliamentary Association (KEWOPA) legal team, said the rule is simpler than it sounds.
“In a 25-member Cabinet, neither gender can hold more than about 16 or 17 seats. That means at least nine positions must go to the underrepresented gender, and that is a requirement to be met immediately, not a target to work towards,” Murakaru said.
Murakaru said the Cabinet fails that count because the court refused to include the secretary to the Cabinet and the attorney general, both women, in the tally, as the National Assembly had proposed. The court held that the Constitution defines the Cabinet narrowly as the President, Deputy President, Cabinet Secretaries, and Attorney General and that the Secretary to the Cabinet is a separate public service office, not a Cabinet member.
Practically, the Cabinet cannot stay as it is. Both the president, who nominates Cabinet secretaries, and the National Assembly, which approves them, have a role in fixing it; the court said each “possesses the constitutional capacity to ensure compliance.” That likely means appointing more women or removing some sitting male cabinet secretaries to make room, since the cabinet’s size is capped. Who exactly is affected is a political call, not something the court dictated.
The court gave 120 days, a deadline of October 28, 2026, without specifying what happens if it passes uncorrected. That gap matters: an almost identical 2016 ruling against President Uhuru Kenyatta’s cabinet was never appealed, yet was also never durably complied with, and cabinets kept being reshuffled over the following decade without ever settling into a compliant mix.
Murakaru said that history is why he is not treating this judgment as self-executing. “If the deadline is missed, the realistic option for petitioners is to go back to court, either through contempt proceedings or a fresh case, because nothing forces compliance automatically,” he said.
That recurrence is itself the story. Courts have read the two-thirds principle consistently since 2010, including here, in 2016, and at the Supreme Court, so the law isn’t really in dispute. What’s missing is a mechanism that makes non-compliance automatically costly, rather than something fixed only after years of fresh litigation each time.
On why courts can weigh in at all, Parliament had argued that Cabinet appointments are exclusively an executive and parliamentary matter and that separation of powers should keep judges out. The court disagreed, citing constitutional provisions requiring all state power to stay within constitutional limits and its own jurisdiction to test whether actions taken under the Constitution are themselves constitutional. Judges aren’t picking who serves as Cabinet Secretary, the ruling clarified, but they can review whether the resulting composition meets requirements the Constitution sets, including gender balance.
The rule isn’t confined to the national cabinet. It applies equally to county executive committees, and available figures suggest several counties, including Nairobi at roughly 75 percent male, are similarly out of step, though nothing in this judgment forces automatic change there.
However, the National Assembly Speaker Moses Wetang’ula has filed a notice of appeal to contest parts of the judgment. The petitions were brought by a coalition including Katiba Institute, the Kenya Human Rights Commission, and lawyer Okiya Omtatah Okoiti, among others.
Murakaru said the appeal does not change the underlying picture. “The law has been settled for a decade. The country keeps landing back in court over the same shortfall, and that tells you the real gap is political will, not legal clarity,” he said.