–Victoria Miyandazi, Assistant Professor in Public Law at the University of Nottingham (UK), and Munene Njoroge, Advocate of the High Court of Kenya and a Research Fellow at the Strathmore Centre for Law, Policy and Governance
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2026 columnists, see here.]
Introduction
Across constitutional democracies, some of the hardest equality questions – particularly those requiring the state to take positive measures – begin in earnest after judgment. A court may identify a clear constitutional violation, but, especially in a hybrid democracy such as Kenya, a declaration does not by itself change institutional composition or practice when implementation ultimately depends on political actors. The central question is therefore not only whether courts will enforce ambitious equality guarantees, but whether their remedies can convert constitutional principle into institutional change.
Kenya’s continuing struggle over the two-thirds gender rule – the requirement in Article 27(8) of the Constitution of Kenya, 2010 that no more than two-thirds of the members of an elective or appointive public body, including the Cabinet, may be of the same gender – offers a sharp illustration. On 30 June 2026, a three-judge bench of the High Court of Kenya (Ogola, Githinji and Ngaah JJ) held in Ole Kanchory & 10 Others v President of the Republic of Kenya & 32 Others [2026] KEHC 9465 (KLR) that the Cabinet, as presently constituted, violates the two-thirds gender rule. The Court directed the Appointing Authority to make Cabinet appointments conforming to Article 27(8) within 120 days [393(f)–(g)].
The declaration itself broke little new ground. A decade earlier, the High Court had reached substantially the same conclusion in Marilyn Muthoni Kamuru & 2 Others v Attorney General & Another [2016] KEHC 8370 (KLR). In that case, the Court suspended its declarations of constitutional violation for eight months – or until a new Cabinet was constituted – and directed that the new Cabinet comply with Article 27(8). Those declarations were never complied with. The same constitutional defect has nevertheless resurfaced. What is new in Kanchory is therefore not the existence of a compliance period as such, but the form and directness of the remedy: a shorter, express and ostensibly structural order requiring compliance within 120 days.
By majority, Ogola and Githinji JJ upheld most other aspects of the Executive’s reconstitution following the Finance Bill protests of 2024. These included the reappointment of former Cabinet Secretaries, the nomination of the Attorney General without prior competitive recruitment, the appointment of politicians associated with parties outside the governing coalition, and the National Assembly’s approval process. Ngaah J agreed that the Cabinet violated the gender rule and that the Attorney General had been validly appointed but dissented on the reappointments, and the appointment of politicians from parties outside government.
The judgment’s principal significance lies less in its finding of a violation than in its remedial wager: testing whether a court-imposed deadline for constitutional compliance, imposed without continuing judicial supervision, can secure compliance where an earlier judgment did not.
An Old Question and a Continuing Enforcement Problem
Kenya has been confronting the two-thirds gender rule question for almost as long as the 2010 Constitution has existed. Article 27(8) was enacted against a history of women’s systematic exclusion from public office. More than fifteen years after promulgation, the State continues to struggle with the legislative arrangements necessary to implement the principle in elective bodies. Appointive bodies, as Kanchory forcefully reminds us, do not face the same structural impediment.
The present litigation arose from the extraordinary political events of mid-2024. Following nationwide protests against the Finance Bill, President William Ruto declined to assent to the Bill. On 11 July 2024, after what he described as “a holistic appraisal” of the Cabinet’s performance, he dismissed virtually the entire Cabinet. Within days, however, he began renominating a new Cabinet containing many of the same individuals [1–9]. Four consolidated petitions challenged both the process and the resulting appointments, raising a wide range of constitutional questions. This article focuses on the Court’s treatment of the two-thirds gender rule and, in particular, the remedy it fashioned for the violation.
The Gender Holding in Three Stages
The Court’s reasoning on the two-thirds question unfolds in three stages: what counts as the Cabinet, whether its composition crosses the constitutional line, and the character of the obligation imposed by Article 27(8).
What counts as the Cabinet?
Article 152(1) of the Constitution answers the first question in terms the Court found “clear, exhaustive”, and leaving “little room for interpretive uncertainty” [240]. The Cabinet consists of the President, Deputy President, Attorney General, and between fourteen and twenty-two Cabinet Secretaries. The Attorney General must therefore be included in the calculation. The Secretary to the Cabinet, by contrast, is established separately under Article 154. The Attorney General had argued, using an earlier numerical configuration, that the inclusion of the female Secretary to the Cabinet would result in seventeen men and nine women and therefore secure compliance [152]. The Court rejected the legal premise of that calculation. The Secretary performs important administrative and coordinating functions but is not a member of the Cabinet. The office exists to support the Cabinet, not to constitute part of it. Had the framers intended otherwise, they would have included the Secretary among the offices listed in Article 152(1). The omission, the Court held, “cannot be treated as accidental” [241–245].
The arithmetic
As of June 2026, the Cabinet comprised twenty-five members: the President, the Deputy President, the Attorney General and twenty-two Cabinet Secretaries. Seven were women and eighteen were men. Women therefore occupied approximately 28 per cent of Cabinet positions, while men occupied approximately 72 per cent. For a body of twenty-five members to comply with Article 27(8), neither gender may hold more than sixteen positions. The underrepresented gender must therefore occupy at least nine. With only seven women, the Cabinet fell short by two [251–254].
The calculation is uncomplicated, but its practical consequences are significant. The Cabinet already contains the constitutional maximum of twenty-two Cabinet Secretaries. Compliance cannot therefore be secured merely by adding two further positions. It will require the replacement of some male Cabinet Secretaries with women or a broader reconfiguration of the Cabinet.
The character of the obligation
Some Cabinet Secretaries, appearing as interested parties, argued that gender representation should be interpreted “holistically and contextually rather than mechanically” [96]. The Court did not reject context altogether. Indeed, it situated Article 27(8) within the Constitution’s broader transformative ambition to dismantle historical structures of exclusion and secure meaningful participation in decision-making. Context, however, explains the purpose of the numerical threshold; it does not permit the threshold to be diluted. The framers “deliberately adopted a numerical threshold because they understood that substantive equality requires meaningful participation in decision-making structures” [257]. The constitutional inquiry is not whether women occupy important ministries or whether the Government has improved on the record of earlier administrations. It is whether the composition of the body complies with Article 27(8) [247, 255–258]. The rule is therefore a floor, not an aspiration.
Crucially, the obligation is immediate. The Court distinguished the Supreme Court’s Advisory Opinion No. 2 of 2012, which accepted progressive realisation of the two-thirds gender rule in relation to elective bodies because their composition depends upon voters’ choices and the design of the electoral system. Appointive bodies are different. They are constituted through deliberate decisions by identifiable constitutional actors. The President controls nomination, while the National Assembly controls approval. Both therefore possess the constitutional capacity to prevent a violation [260–264]. The Court consequently declared Article 27(8) “immediate, mandatory and fully enforceable” in relation to appointive bodies, including the Cabinet [393(h)].
Ngaah J, although dissenting on the reappointment of former Cabinet Secretaries and the appointment of politicians from parties outside government, concurred emphatically on this point. Implementation in appointive positions, he reasoned, is “a less complex affair” than implementation in elective bodies and requires no legislation. A President who deliberately appoints a Cabinet below the threshold is, he suggested, unnecessarily subjecting the Constitution to a “stress test”. In such circumstances, the Court must protect the Constitution from “snapping” [dissent, 3–6].
120 days to comply
The petitioners sought the invalidation of the entire Cabinet, nullification of Cabinet decisions, quashing of the Gazette Notices effecting the appointments and orders restraining the payment of salaries [379, 389]. The majority declined to go that far. Constitutional remedies, the majority reasoned, must be “proportionate, effective and consistent with the broader public interest”. The Cabinet is the apex policy-making organ of the National Executive, responsible for national policy, government coordination, national security, foreign affairs and economic management. Its wholesale invalidation would create an immediate constitutional and governance vacuum, disproportionately affecting members of the public who were not responsible for the defective appointments [389–391]. `Invoking Articles 23(3) and 165(3)(d), the majority instead coupled a declaration of constitutional violation with what it described as a “mandatory structural order” requiring compliance within 120 days [392–393(g)].
Two observations arise. First, the order contains limited supervisory machinery. It fixes no return date, requires no compliance affidavit or remedial plan, and does not expressly retain jurisdiction. It therefore differs from a fuller report-back structural interdict, under which the responsible State actors would be required to demonstrate to the Court how they intend to remedy the violation and what progress has been made. The order remains legally binding. The difficulty is that the judgment itself supplies no automatic mechanism for determining whether compliance has occurred, addressing defective or partial compliance, or deciding what follows if the deadline is ignored. Further enforcement proceedings may therefore become necessary.
This may reflect deliberate judicial restraint. The immediate cure lies within the Constitution’s shared appointment process: the President must nominate and formally appoint Cabinet Secretaries, while the National Assembly must approve them. The Court specifies the constitutional outcome but does not dictate who should be appointed or removed. That restraint respects the separation of powers, but it also makes the remedy heavily dependent on the willingness of constitutional actors to comply – an especially precarious basis for enforcement in a hybrid democracy such as Kenya.
Second, the remedy is a wager on institutional compliance. The petitioners reminded the Court that the declarations in Kamuru were “never overturned on appeal and therefore [remained] binding.” They characterised the establishment of another non-compliant Cabinet as disregard of a subsisting judgment [105]. Yet Kamuru had itself provided an eight-month period for constitutional correction. The sharper question is therefore not whether Kanchory is the first case to impose a deadline. It is whether a shorter and more express mandatory order, framed in structural terms, will provoke a different institutional response.
Why should 120 days succeed where eight months did not?
Conclusion
The two-thirds gender rule has survived an advisory opinion, judicial declarations, failed legislative initiatives and more than fifteen years of official delay. It has had a compliance window before. What it now has is a shorter and more explicit mandatory order – and another test of the relationship between constitutional adjudication and political obedience. If the Cabinet is brought into compliance by late October, Kanchory will offer evidence that more direct remedial design can achieve what earlier declarations and suspended invalidity did not. If it is not, the constitutional problem will no longer concern gender representation alone. It will also concern the capacity of courts to secure obedience from political branches after the legal position has been stated repeatedly and unequivocally.
A house can be put in order in 120 days. Whether this one will be is a question on which the credibility of Kenya’s transformative constitutional project may now depend.
Authors’ note: At the time of writing, the Speaker of the National Assembly and the National Assembly had lodged a Notice of Appeal, dated 8 July 2026. This post examines the High Court judgment as delivered.
Suggested citation: Victoria Miyandazi & Munene Njoroge, 120 Days to Put the House in Order: Enforcing Kenya’s Constitutional Two-Thirds Gender Rule, Int’l J. Const. L. Blog, Aug. 6, 2026, at http://www.iconnectblog.com/120-days-to-put-the-house-in-order-enforcing-kenyas-constitutional-two-thirds-gender-rule/