Constitutional Showdown: Maraga Warns of Crisis as Court Deadline on Ruto Cabinet Gender Rule Expires

Former Chief Justice David Maraga has raised alarm over the continued breach of the two-thirds gender rule in President William Ruto's Cabinet, warning that Kenya is edging closer to a full constitutional breakdown after a deadline set by a court for compliance expired.

The deadline, issued by a court in Nairobi, Kenya's capital, had given the Executive a defined window to bring the Cabinet's composition in line with the Constitution. That window has now closed with the Cabinet still short of the constitutional threshold, and Maraga's intervention has pushed the standoff back to the centre of national politics.

The dispute is rooted in the two-thirds gender principle at the heart of Kenya's 2010 Constitution, promulgated in August of that year. Article 27(8) obliges the State to take legislative and other measures to ensure that no more than two-thirds of the members of elective or appointive bodies are of the same gender, while Article 81(b) extends the principle to elected offices. Cabinet Secretaries are nominated by the President and vetted by the National Assembly, placing the Cabinet squarely among the appointive bodies covered by the rule. The provision was designed as a corrective to the persistent under-representation of women in public office.

Maraga served as Kenya's Chief Justice from October 2016 until his retirement in January 2021, a tenure defined by confrontations over constitutional compliance. The Supreme Court he led annulled the 2017 presidential election, and in September 2020 he took the unprecedented step of advising President Uhuru Kenyatta to dissolve Parliament under Article 261(7) for its repeated failure to enact legislation implementing the gender rule. The dissolution was never carried out, the 12th Parliament served out its full term until the August 2022 general election, and the legislation was never passed.

The current case puts the principle's application to the Cabinet itself under scrutiny. The challenge that produced the deadline was premised on the position that women hold fewer than a third of Cabinet positions, leaving men beyond the two-thirds ceiling, and the court responded by directing that the composition be regularised within a fixed period. That period has now lapsed without the Cabinet being reconstituted to meet the rule, drawing Maraga's warning of an escalating constitutional crisis.

The failure stretches back more than a decade. A 2012 Supreme Court advisory opinion held that the gender principle was not self-executing and required legislation to implement, and a 2017 High Court order directing Parliament to enact that legislation within sixty days went unexecuted. The two-thirds Gender Bill collapsed in the National Assembly in 2018 after it failed to muster the two-thirds majority needed for passage, and general elections in 2013, 2017 and 2022 have all been conducted without the implementing law in place.

Attempts to resolve the question have repeatedly foundered on disagreements over whether compliance requires special seats, a statutory formula or nomination mechanisms, disagreements that split Parliament and successive executives alike and stalled every proposed solution.

The expired deadline now raises the question of consequences. The Constitution prescribes a specific remedy where Parliament fails to enact required legislation, namely dissolution on the advice of the Chief Justice, but it sets out no equivalent sanction for a Cabinet appointed in breach of the two-thirds principle, leaving the next move with the judiciary and the Executive.

Maraga has pressed the argument since his retirement that the gender rule is a binding command of the Constitution rather than an aspiration, and his latest warning extends that position from Parliament to the Cabinet. The court order remains in place, the Cabinet continues to serve in its current composition, and the lapsed deadline now awaits a response from both the bench and State House.