You've violated the supreme law, LSK tells Ruto on Cabinet

Lawyers have accused President William Ruto of defying a court order by retaining a Cabinet that was declared unconstitutional for failing to comply with the two-thirds gender principle, warning that the continued violation threatens the rule of law.

The Law Society of Kenya (LSK) has said the expiry of the 120-day period granted by the High Court to allow the President to reconstitute his Cabinet had left the Head of State and his Cabinet in active violation of the Constitution.

LSK President, Charles Kanjama, said the court order had neither been stayed, reviewed nor overturned, insisting that the President had no justification for failing to implement the judgment.

"The President of Kenya is now in violation of the Constitution pursuant to an express court order. The Cabinet of Kenya is unconstitutional and its actions and decisions are susceptible to being deemed null and void," Kanjama said.

The society called on the petitioners who successfully challenged the composition of the Cabinet to move to court and seek enforcement of the judgment, saying it was ready to join the proceedings if necessary.

"This should not drag for even one extra week, else it will signify unacceptable impunity in the Executive," Kanjama warned.

The High Court, in a judgment delivered on June 30, declared the composition of the Cabinet unconstitutional for violating Article 27(8) of the Constitution, which requires that no more than two-thirds of members of appointive bodies be of the same gender.

The court gave the President 120 days to reconstitute the Cabinet and comply with the constitutional requirement, with the deadline expiring on October 28.

The LSK's position comes amid an ongoing legal battle, with the Attorney General seeking to challenge the judgment at the Court of Appeal and obtain orders suspending its implementation.

Court of Appeal declined to certify as urgent an application by the AG seeking to suspend the ruling.

In its monthly briefing on the rule of law, police reforms and accountability in public office, the society also turned its attention to the controversy surrounding proposed changes to the country's electoral laws, warning Parliament against weakening safeguards for transparency ahead of the 2027 General Election.

Kanjama demanded that Parliament publish the final text of the Elections (Amendment) (No. 2) Bill, 2024, together with a record of the amendments approved by the National Assembly, saying Kenyans should not be left to rely on competing political explanations to understand the law.

The Bill, which originated in the Senate, seeks to amend various provisions of the Elections Act, including those governing the transmission and declaration of election results, voter registration, political party nominations and electoral dispute resolution.

Its passage through Parliament has triggered public uproar, particularly over Clause 22, which initially proposed deleting and replacing Section 39 of the Elections Act, the provision governing the determination, transmission and declaration of election results.

The proposed changes sparked fears that the Independent Electoral and Boundaries Commission (IEBC) would lose its legal obligation to livestream results announced at polling stations, potentially weakening public scrutiny of the electoral process.

The controversy intensified after the National Assembly considered and passed the Bill with amendments on October 22, with initial reports suggesting that MPs had removed the livestreaming requirement.

Parliament and government officials subsequently moved to clarify that the House had deleted the contentious Clause 22, thereby retaining the existing Section 39 and its provision requiring IEBC to establish a mechanism for livestreaming results.

The Bill has since been returned to the Senate for consideration of the National Assembly's amendments.

However, LSK maintained that the confusion surrounding the legislative process demonstrated the need for Parliament to make its decisions and the final wording of the proposed law publicly accessible.

Kanjama said livestreaming, electronic transmission and publication of polling station results forms served different but complementary purposes and should not be treated as interchangeable.

"Transmission sends results to the IEBC's systems. Livestreaming allows the public to follow those results as they come in," he said.

He added: "These safeguards work together."

The society cited previous court decisions, including Katiba Institute and three others versus the Attorney General and others, in which the requirement under Section 39(1G) that livestreamed results be treated as public information only was declared unconstitutional. The decision was subsequently upheld by the Court of Appeal.

LSK argued that Articles 81 and 86 of the Constitution required transparency, accuracy, accountability and verifiability throughout the electoral process.

It demanded that Parliament expressly protect livestreaming of polling station results through a publicly accessible platform, allowing citizens, candidates, journalists and observers to independently scrutinise the figures.

"We will move to court to challenge any law that weakens public scrutiny and verification of election results and seek orders stopping its implementation. We will not stand by as safeguards protecting the vote are dismantled," Kanjama said.

The society also announced plans to challenge a Court of Appeal judgment that it says undermines the constitutional mandate of the National Police Service Commission (NPSC).

An October 16 judgment in an appeal involving the Commission and Harun Mwau, consolidated with a separate case involving LSK, placed uniformed police officers outside the Commission's authority over recruitment, appointments, promotions, transfers and disciplinary control, restricting its mandate to civilian staff.

Kanjama said the decision had effectively weakened an institution established to safeguard police independence and accountability.

"Those responsibilities must be read together with the Inspector General's independent command," he said, adding that the Inspector General should oversee police operations while the Commission provides independent safeguards over personnel decisions.

LSK has lodged a notice of appeal and intends to move to the Supreme Court to challenge the ruling.

The society further called for the conclusion of disciplinary proceedings against advocates and politicians Peter Kaluma and John Kaguchia over remarks attributed to them, saying political positions should not shield lawyers from professional accountability.

Kanjama said advocates remained bound by professional standards even when participating in partisan politics, warning that political competition should never become an excuse for threats, incitement or hostility against citizens holding divergent views.