The High Court has upheld the nomination, vetting and appointment of Cabinet Secretaries (CSs) following the dissolution of Cabinet during the 2024 Finance Bill protests, dismissing a petition that sought to invalidate the current Cabinet.
The case challenged President William Ruto’s decision to reappoint several Cabinet Secretaries after dissolving his Cabinet at the height of the nationwide demonstrations.
A majority decision by Justices Eric Ogola and Stephen Githinji, alongside a dissenting opinion by Justice Jairus Ngaah, reaffirmed the President’s appointment powers and the National Assembly’s constitutional role in approving Cabinet nominees.
Court Clears Reappointment of Former Cabinet Secretaries
The majority held that dissolving the Cabinet did not permanently disqualify former Cabinet Secretaries from serving again. According to the judges, the President’s decision to dissolve the Cabinet was a political and administrative reorganisation rather than a disciplinary action.
Since no findings had been made that any of the reappointed CSs violated Chapter Six of the Constitution on leadership and integrity, they remained eligible for fresh appointments.
Justice Ngaah, however, disagreed. In his minority judgment, he argued that where public officials are removed due to incompetence or poor performance, such circumstances could undermine their suitability for reappointment, particularly where the President had publicly acknowledged shortcomings in the Cabinet’s performance.
National Assembly Vetting Process Upheld
The court also dismissed claims that the National Assembly conducted an inadequate public participation exercise during the vetting process.
Petitioners argued that Parliament provided insufficient time for public input, failed to disclose adequate information and excluded objections raised against some nominees.
However, the judges found that Parliament substantially complied with constitutional requirements. They ruled that requiring objections to be submitted through sworn affidavits was a legitimate safeguard that promotes accountability and ensures allegations presented before the Appointments Committee are supported by evidence.
Opposition Appointments Allowed, Gender Rule Violated
On the inclusion of opposition leaders in Cabinet, the majority ruled that political affiliation is not a constitutional barrier to appointment. The judges noted that Kenya’s Constitution does not establish an official opposition as a constitutional institution and instead relies on separation of powers and institutional checks and balances.
Justice Ngaah differed on this issue, arguing that participation of political parties in government should occur only through coalition agreements or mergers as provided under the Political Parties Act.
Despite dismissing most of the petition, the court unanimously found that the current Cabinet violates the Constitution’s two-thirds gender principle under Article 27. The President has been directed to reconstitute the Cabinet to meet the constitutional gender requirement within 120 days of the judgment.
