Court orders Ruto to reshuffle Cabinet within 120 Days

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

In a split decision delivered yesterday in consolidated petitions led by Katiba Institute, Justices Fred Ogola and Stephen Githinji formed the majority, while Justice Jairus Ngaah delivered a dissenting opinion criticising the reappointment of dismissed Cabinet Secretaries and the inclusion of ODM politicians in government.

The majority held that the current Cabinet fails to meet the constitutional gender threshold. Of its 25 members, only seven are women and 18 are men, leaving female representation at about 28 per cent—below the constitutionally required minimum of one-third.

The judges also ruled that the Secretary to the Cabinet cannot be counted because Article 152(1) of the Constitution defines the Cabinet as comprising only the President, Deputy President, Attorney General and Cabinet Secretaries.

"The current Cabinet does not comply with the two-thirds gender principle," the judges ruled, directing the President to comply with Article 27 of the Constitution.

The petitions stemmed from President Ruto's decision to dissolve his Cabinet in July 2024 following nationwide Gen Z protests before reappointing several former Cabinet Secretaries and appointing a number of ODM politicians to what State House described as a broad-based government.

On the question of whether the President acted constitutionally by reappointing Cabinet Secretaries he had dismissed  only weeks earlier, the majority held that his powers under Article 152(5)(b) to appoint and dismiss Cabinet Secretaries are broad, and that dismissal alone does not automatically raise integrity concerns under Chapter Six of the Constitution.

The court also upheld the National Assembly's vetting of the nominees, finding that public participation requirements had been met. It further ruled that the appointment of the Attorney General complied with the Constitution, rejecting arguments that the office should have been subjected to the same competitive recruitment process as the Director of Public Prosecutions.

However, in a strongly worded dissent, Justice Ngaah questioned the logic of reappointing ministers whom the President had publicly dismissed as ineffective.

"Why would the President renominate people that he found to be ineffective and dismissed them to the same positions?" Justice Ngaah asked, arguing that under Article 259(10) of the Constitution, a dismissed State officer can only be reappointed if still qualified to hold office.

He said the President's own reasons for dissolving the Cabinet undermined the justification for reinstating many of its members.

Justice Ngaah was equally critical of the appointment of ODM leaders to government, arguing that bringing opposition MPs into Cabinet without a formal coalition agreement violated the Political Parties Act.

"Opposition MPs can only be co-opted into government through the framework of Sections 10 and 11 of the Political Parties Act," he ruled. "The only means by which a ruling party can partner with the opposition is through the framework of a coalition."

In one of the most forceful passages of the judgement, Ngaah said the courts have a duty to intervene whenever the Executive departs from the Constitution.

"When the President frustrates the Constitution, it is the duty of the Court to rise up and safeguard the Constitution," he said, citing Article 131(2)(a), which obliges the Head of State to respect, uphold and safeguard the Constitution.

While the majority spared the President on the politically contentious issues of reappointing dismissed CSs and incorporating opposition figures into government, its binding order requiring him to comply with the gender rule within 120 days hands him a fresh political and legal challenge.

The Attorney General's appointment was the only issue on which all three judges agreed, unanimously upholding it as constitutional.