How President Ruto has been cornered on two third gender rule

 

The current Cabinet comprises eight women including Alice Wahome, Rebecca Miano, Soipan Tuya, Attorney-General Dorcas Oduor and Secretary to the Cabinet Mercy Wanjau. [File, Standard]

President William Ruto has no option but to comply with the court orders, legal experts have warned.

In separate interviews with The Standard, different legal authorities argue that the intention to appeal and the orders being sought are too late in the day for the Head of State to seek the Court of Appeal’s intervention.

The Law Society of Kenya (LSK) said Cabinet Secretaries are illegally in office. 

The Charles Kanjama and Teresiah Wavinya led society insisted that upon the lapse of the 4 months, the Cabinet may be declared dissolved as there are no orders stopping the same.

"This is simple. First, the President of Kenya is now in violation of the Constitution pursuant to an express Court order. Second, the Cabinet of Kenya is unconstitutional, and its actions and decisions are susceptible to being deemed null and void. Third, the Cabinet may potentially be declared dissolved by virtue of a Court order,” the society said.

While calling upon the Attorney General to advise President Ruto on the need to immediately reverse the situation by reconstituting the current cabinet, LSK said the situation at hand is unacceptable.

“Ruto must reconstitute his Cabinet and ensure it complies with the two-thirds gender principle. This should not drag for even one extra week, else it will signify unacceptable impunity in the Executive," said LSK.

Lawyer Bob Mkangi said Ruto’s failure to reconstitute the cabinet within the 120-day grace period granted by High Court Judges Eric Ogola, Stephen Githinji and Jairus Ngaah already signalled gross violation of the Constitution.

Mkangi, who was a commissioner in the nine-member Committee of Experts for Constitutional Review (CoE), was of the view that this could be a ground for impeachment but pointed out that it may not materialise with the current political arrangements

“If the president fails to comply with the order, this will invite any member of the National Assembly to commence impeachment proceedings against the president, under Art. 145 (1) of the Katiba and particularly paragraph (a) - for grossly violating a provision of the Constitution. Whereas this may not materialise because of current political factors (parliamentary formations and proximity to 2027 elections),” said Mkangi, adding that politically, non-compliance will give the President’s opponents fodder to campaign for his sacking on the ballot by the electorate.

He insisted that Ruto rode on the promise of gender equality, which he added will be among one of the measures that his tenure will be scaled against.

“Politically will be a stain in the scorecard of a president who ran on the promises of ensuring that gender thresholds as per the CoK 2010 would be respected and implemented across institutions under the executive; and the restoration of the dignity of the Constitution and the culture of constitutionalism broadly,” he added.

According to Mkangi, failing to either let go of some men or appoint more women or overhaul the entire cabinet is yet another show of contempt against Kenya’s supreme law despite the President swearing to defend and uphold it.

“To those keeping score of broken promises, this will yet be another instance when the executive has disdainfully disregarded the very Katiba that he swore to respect, uphold, and defend, the courts and the rule of law,” argued Mkangi.

 The current Cabinet comprises eight women: Lands Cabinet Secretary Alice Wahome, Tourism Cabinet Secretary Rebecca Miano, Defence Cabinet Secretary Soipan Tuya, Environment Cabinet Secretary Dr Deborah Barasa, East African Community Cabinet Secretary Beatrice Askul Moe, Gender Cabinet Secretary Hanna Cheptumo, Attorney-General Dorcas Oduor and Secretary to the Cabinet Mercy Wanjau.

This comes as Ruto’s lawyer downplayed the crisis, saying that there was no express order spelling out the consequences of noncompliance.

Adrian Kamotho said the back stops with Parliament which ought to give Ruto the formula on how to either remove some male members or add more women to comply with the two third gender rule.

“There is absolutely no crisis, and the same is being manufactured. Those propagating the narrative that there is a crisis have not read the judgment delivered by the three-judge bench,” he said, adding that according to the judgment, there is no legislative framework to enable him to act.

“Which criteria do you invoke if you decide to remove male members of Cabinet? They were properly nominated and appointed. There is no mechanism of implementing Article 27 (8), which outlines the mechanics of implementation. The court did not give any clarity or actions that would have been undertaken, which he can be said to have not complied with. The president does not and is not refusing to comply, but there is a wall. There should be a formula to downscale the cabinet or carry out fresh appointments,” said Kamotho.

He insisted that the backstop is Parliament, adding that in previous governments, the female members were between five and seven.

“You cannot infringe on the rights of the people without an explanation. There must be a valid reason for the removal. There are no consequences in the orders issued by the court,” he argued, adding that one of the prayers was to annul the cabinet.

Former Chief Justice David Maraga urged Ruto to let go of the intention to appeal and comply.

“Defying the courts is an explicit invitation to anarchy. If this is too difficult to do, he can also resign immediately and allow Kenyans who believe in Ukatiba (constitutionalism) to serve the country with absolute fidelity to the law,” said Maraga.

The United Green Movement (UGM) party leader insisted that Ruto is walking in the same path that Parliament did when it failed to enact the two-thirds gender rule law.

Maraga, who was then Chief Justice, advised the then President Uhuru Kenyatta to dissolve Parliament.

The case is still in court, with the members of the 11th Parliament distancing themselves from their predecessors.

The current August House, in its case before Jairus Ngaah, Lawrence Mugambi, Patricia Nyaundi, Moses Ado and Tabitha Wanyama, claimed that they cannot be punished for the sins of the previous houses.

Their lawyer Ahmednasir Abdullahi argued that solving the gender balance issue cannot be realised through legislation.

Instead, he argued that it ought to be dealt with through a referendum.

While faulting former Chief Justice David Maraga for recommending that Parliament should be dissolved, Ahmednasir said that there is no mandate for Parliament to enact laws to realise gender balance in representation.

According to him, the Constitution requires the State to ensure gender balance. He criticised Maraga, saying that the former CJ had unfairly singled out Parliament, leaving out the Executive in his recommendation.

“It is not possible to legislate. It is only possible if we have a consensus that a referendum should be held to amend the Constitution. There is no mandate requiring the Parliament to legislate the two-thirds gender rule. There is judicial sloganeering when interpreting the Constitution,” argued Ahmednasir.

He continued: “My clients are not the State. They are a part of it. Nobody has defined what the State means.”

On Friday, Maraga insisted that he had followed the Constitution. He said that the current crisis is a catastrophe to Kenya’s governance. He was of the view that anything passed by Cabinet from midnight on October 28, 2026, is illegal.

“Failure to comply with the Constitution makes all executive actions taken by the Cabinet thereafter a legal nullity. Every decision, policy directive, and national framework passed by this unconstitutional body can be successfully struck down in court. Every single public expenditure authorised by this Cabinet from today onwards, until President Ruto appoints two more women to his Cabinet, is completely illegal,” the former CJ continued.

Maraga was also of the view that anyone can move to court to cite the President for contempt.

“Why is President Ruto even appealing a judgment that simply asks him to include Kenyan women in governance? Is he implying that the women of Kenya are undeserving of seats in his Cabinet? Is he suggesting that a country of over 50 million people lacks just two additional qualified women to serve in his Cabinet, despite having four full months to find them?” he paused.