Blow to Ruto as court shuts window to save Cabinet

President William Ruto's window to make his Cabinet legitimate after it was declared an illegality was shut after the Court of Appeal on Thursday declined to suspend a High Court order, requiring the President to reconstitute the Cabinet by close of midnight on Wednesday.

The Appellate Court instead directed the Attorney General, Dorcas Oduor, to serve the application to other parties in the case, who will, within 30 days, file their responses and submissions.

 The AG, in her application filed under urgency, argued that there was an imminent danger of the orders issued by High Court Judges Eric Ogola, Stephen Githinji and Jairus Ngaah kicking and disrupting the Executive’s operations.

“The intended appeal further challenges the mandatory direction requiring appointments within 120 days, on the ground that its terms and timeframe improperly intrude upon the constitutional functions of the Executive and the appointment process involving the National Assembly, contrary to the separation of powers,” argued State’s lawyer Christopher Marwa.

He also argued that if the court does not intervene, the current Cabinet, which is at the heart of the case will be dismantled before the appeal is heard and determined.

“I believe that, if the appeal succeeds after those changes have been implemented, an appellate decision may not adequately reverse the intervening consequences. It is for that reason that the Applicant apprehends that the intended appeal would be rendered nugatory without interim preservation,” added Marwa.

In his supporting affidavit, Principal Administrative Secretary Arthur Osiya claimed that the parties in the case would not suffer if the Court of Appeal issued an order to freeze the implementation of the judgment.

He asserted that it would be difficult to reverse the orders immediately after the lapse of the grace period issued by the High Court.

“In my belief, the balance of convenience, the interests of justice and the public interest favour interim preservation while the appeal is determined, taking account of continuity in the administration of government, the respondents' interest in constitutional compliance and the need for an effective appellate remedy,” argued Osiya.

The AG said that she is dissatisfied with the whole judgment. According to her, any illegality that was found by the lower court may be remedied at the conclusion of the appeal.

“ Compliance through changes to Cabinet membership may entail nominations, parliamentary approval, appointments and administrative transitions. If those processes are undertaken before appellate determination, they may alter the very composition of Cabinet which forms the subject matter of the intended appeal,” argued Oduor.

He granted the High Court a 120-day grace period to put the Cabinet in order, saying that an immediate dissolution would create a crisis.

It however found that the current cabinet does not meet the two third gender rule as men dominate Ruto’s cabinet.

“ Invalidating the entire Cabinet would create an immediate constitutional and governance vacuum with far-reaching consequences extending beyond the constitutional violation established before the Court. Such a remedy would disproportionately affect innocent members of the public who are not responsible for the impugned appointments,” Justices Ogola and Githinji ruled.

Their colleague, Justice Ngaah, dissented. He questioned why President Ruto reappointed Cabinet Secretaries he had previously dismissed as ineffective following the nationwide protests.

"Why would the President renominate people that he found to be ineffective and dismissed them to the same positions?" he asked, arguing that a dismissed State officer can be reappointed only if they remain qualified under the Constitution.

He was of the view that, unlike the elective seats where the two-thirds gender rule is frustrated by lack of a law, the appointive positions do not need to wait.

The judge maintained that the President, who is the appointing authority, ought to have factored in compliance with the Constitution from the start.

At the same time, Justice Ngaah held that the National Assembly violated the law by accepting and approving the Cabinet nominees while knowing that gender principle had not been complied with. According to him, a failure to follow the Constitution ought to have consequences once the violations were identified.

“For the reasons I have given, I would allow the petition and make the declaration that that the National Assembly violated the Constitution by accepting and approving nominees for Cabinet positions when it was clear that it effectively violated the rule of law and specifically Article 27 (8) of the Constitution; I would also allow the prayer for the

declaration that since the Cabinet, as constituted, fails the test of egality under articles 152 (1), 152 (2) and Article 27 (8), it is in violation of Article 3 (2) and Article 2 (4) of the Constitution and is, therefore, invalid,” said Ngaah.