The High Court on Tuesday ruled that President Uhuru Kenyatta flouted the gender rule principle in the appointment of Cabinet Secretaries.
In a case filed by two lobbies, Centre for Rights Education and Awareness (Creaw) and Community Advocacy and Awareness Trust (Crawn Trust), Justice Joseph Onguto ruled that the current cabinet does not meet the two thirds gender rule.
“A declaration is hereby issued that the President has acted in contravention of the Constitution in nominating, appointing and maintaining a cabinet that does not meet the two third gender requirement under the law,” Justice Onguto said.
The judge also declared that the National Assembly also violated the law in approving nominees for Cabinet positions when it was clear that it would effectively result in a violation of the law.
While noting that the verdict will consequently affect the current cabinet, the judge said that the verdict remains suspended for the next eight months.
“In making my findings, I am conscious of the fact that the cabinet is a crucial organ of the State which the executive cannot function without; I am also aware that the country is headed to the national polls in another eight months or so therefore in that context I must accord public interest and good order,” Justice Onguto ruled.
The judge said that in as much as his findings in the suit mattered, he is mindful of the circumstances of the case so as not to plunge the country into any undue hardship.
“Ordinarily such a finding would lead to a declaration to that effect, which would mean that the impugned act has no legal effect and is thus null and void. I am therefore of the view that a suspension of the invalidity of the violation would be most appropriate,” he added.
He directed that the next cabinet which would either be constituted with the current government or another one as long as it is elected come August 2017, its President and National Assembly must ensure that full provisions of the gender principle are considered.
He gave the President a leeway to reconstitute the cabinet whenever he desires which may be before the eight months period or after.
He also pointed out that basic appointments made in compliance with the two thirds gender rule have the potential of bringing a paradigm shift in the treatment of any disadvantaged gender at any domestic level including the field of education.
“I find that the cabinet as currently constituted has not met the criteria established under Article 27(8) of the Constitution,” he said.
The lobbies had sued the Attorney General, the National Assembly and the Senate for failing to enact the two-thirds gender rule in elective and appointive bodies.
They had argued that the timeline for enactment of the legislation as interpreted by the Supreme Court lapsed on August 27.
Despite the fact that the National Assembly extended that period by one year, the lobbies alleged that Parliament no longer has powers to make a further extension, considering that it is less than a year to the next General Election.
Creaw last year sued the AG and Commission on the Implementation of the Constitution (CIC) on the gender rule and in June 26, last year, High Court judge Mumbi Ngugi allowed the National Assembly to extend the period for enacting the requisite legislation since the deadline was by then a mere less than 60 days away.