A group of activists have moved to court seeking to have President Uhuru’s Kenyatta’s Cabinet, as currently constituted, declared unconstitutional.
The petitioners argue that the five women in a Cabinet of 23 members violate the constitution’s two-thirds gender requirement.
The petitioners, Marilyn Kamuru, Daisy Jerop and the Centre for Rights Education and Awareness, have sued the Attorney General and the National Assembly.
“The Cabinet is composed of 18 men and 5 women – 15 male Cabinet Secretaries, an Attorney General who is male and 5 female Cabinet Secretaries. The composition of the women in the Cabinet is only 5 out of 23, making their composition 21.7 percent of the total,” the petition says.
Article 152(1) of the constitution provides that the Cabinet comprise the President, the Deputy President, the Attorney General and not fewer than 14 and not more than 22 Cabinet Secretaries.
The Executive has previously argued that the president was not under strict obligation to observe the rule as per a Supreme Court ruling on the issue.
In 2012, the Supreme Court gave an advisory on the two-thirds gender rule following a request by Attorney General Githu Muigai.
The Supreme Court asked Parliament to put in place a framework for the realisation of the rule, adding that the two-thirds gender principle would be implemented progressively.
Last year, Parliament extended the passage of laws related to the two-thirds gender rule to August this year, due to time constraints.
The petitioner says the AG is being sued on his own behalf for failing to advise the President and the National Assembly of the constitutional requirement in regard to gender composition of the Cabinet.
“. . . and hence abdicating his constitutional mandate and on behalf of the President who has violated the constitution by conceptualizing, nominating, appointing and maintaining an unconstitutional Cabinet,” the petition reads.
The petitioners also want the court to declare that the National Assembly acted in violation of the constitution by approving the recent nominees for Cabinet Secretary positions.
They argue that MPs did this even “when it was clear that it would effectively result in violation of the rule of law and specifically Article 27(8) of the constitution”.
The petitioners argue that if the provisions of article 27 were to be complied with, and even assuming the female gender were to be the lesser represented in the Cabinet, it would follow that at least 33.3 percent of the membership of the Cabinet must be women.
“That would require that, at the least 8 women be members of the Cabinet. The converse would also apply if the male gender were to be the lesser gender represented in the Cabinet,” the petitioners argue.
They add that the President in nominating and the National Assembly in the process of approval were under a duty to ensure that no gender fell below 33.3 percent.