In July 2024, after weeks of public pressure over governance and accountability, President William Ruto dismissed his Cabinet. Days later, several dismissed Cabinet Secretaries were nominated back into government, raising fresh questions about constitutional compliance including gender representation, public participation, ineligibility of some cabinet members, integrity questions and the place of opposition leaders in the Executive. 

Katiba Institute, together with CREAW Kenya, Tisa Kenya, CRAWN Trust and World March of Women–Kenya, challenged the composition of the Cabinet. Their case argued that because Cabinet positions are nominated and appointed directly by the President, the Executive had a clear responsibility to comply with the Constitution’s gender principle when nominating Cabinet members. 

What the Court Decided 

The High Court’s ruling declaring President William Ruto’s Cabinet unconstitutional reignited debate over Kenya’s commitment to gender equality in public appointments. A three-judge bench found that the Cabinet, as currently constituted, violates Article 27(8) of the Constitution, which requires that no more than two-thirds of members of an appointive public body be of the same gender. It directed the President to reconstitute the Cabinet within 120 days. 

Following the judgment, Katiba Institute’s Litigation Counsel Sumayyah Mokku appeared on NTV’s Fixing the Nation to explain why the decision matters. She said the case was not a political attack on the Executive, but a straightforward enforcement of the Constitution. 

“The Constitution is explicit: not more than two-thirds of Cabinet members can be of the same gender,” Sumayyah said. “The court’s decision was a straightforward enforcement of this principle. The President is not above the law.” 

The court found that the Cabinet had 25 members for purposes of the constitutional calculation: the President, Deputy President, Attorney General and Cabinet Secretaries. Of these, 18 were men, and seven were women, meaning women accounted for about 28 per cent of the Cabinet. The judges held that, in a 25-member Cabinet, the underrepresented gender should occupy at least nine positions for the Cabinet to meet the constitutional threshold. 

“When the President deliberately appoints a cabinet whose composition falls short of the gender threshold set in express, certain and unambiguous terms in Article 27(8) of the Constitution, no plausible explanation can be given for his conduct except to say that, perhaps, the President is unnecessarily subjecting the Constitution to a stress test,” Justice Ngaah noted. 

Why the Ruling Matters 

The judgment gives the President 120 days to bring the Cabinet into compliance with Article 27(8). It also confirms that gender balance in appointive public bodies is a binding constitutional requirement, not a matter of discretion. 

In reaching that conclusion, the court excluded the Secretary to the Cabinet from the gender computation, finding that the office is not listed among the Cabinet under Article 152(1) of the Constitution. The judges also assessed the Cabinet’s composition as it stood at the time of judgment, rather than only at the time the petition was filed. 

Although the court ordered compliance with the gender rule, it did not invalidate the Cabinet on the other grounds raised. The judges declined to nullify the reappointment of former Cabinet Secretaries solely because they had previously been dismissed, finding that the Constitution does not bar a former Cabinet Secretary from reappointment. 

Sumayyah noted that the ruling confirms that constitutional obligations are not optional and that public power must always be exercised within the limits set by the Constitution. She rejected claims that the Judiciary had overstepped its mandate, saying the court was simply fulfilling its duty to safeguard constitutionalism. 

“This is not about politics,” she said. “It is about fidelity to the Constitution and about ensuring that executive power is exercised within the law.” 

She added that the litigation should now lead to compliance rather than further delay. “This litigation must come to an end. The point has already been made, the court has already said what needs to be done, so the government needs to comply. We need to end this cat-and-mouse game,” she said. 

The Bigger Gender Rule Debate 

Beyond the Cabinet ruling, Sumayyah highlighted that Kenya’s long-running struggle to implement the two-thirds gender principle is less about legal complexity and more about a lack of political goodwill. She noted that where the Executive and Parliament are determined to act, legislation often moves quickly. 

“When the Executive and Parliament want something, legislation moves quickly. The fact that gender equity laws have stalled shows the political class benefits from the status quo,” she said. 

She also pointed to the Attorney General’s office and Parliament, arguing that both institutions have a role in developing and passing the necessary framework to give full effect to the gender principle. However, she observed that proposals such as reserving constituencies for women or creating additional seats often trigger political resistance, making honest national dialogue difficult. 

The ruling, therefore, places the burden squarely on the appointing authority to correct the imbalance. It also revives a broader constitutional conversation that has persisted since the 2010 Constitution was adopted: how to ensure that women and other underrepresented groups are not left at the margins of public power. 

What Happens Next 

While the government may pursue an appeal, Sumayyah urged the Executive to treat the judgment as an opportunity to realign the Cabinet with the Constitution rather than as a setback. She noted that compliance would strengthen public trust, affirm equality and demonstrate respect for the rule of law. 

For Katiba Institute, the ruling is more than a legal victory. It is a reminder that constitutional limits on power must be observed in practice, and that equality cannot remain a promise on paper. As Sumayyah put it, echoing the proverb that opened her interview: “When the roots are deep, there’s no reason to fear the wind.” 

Fixing The Nation Interview