High Court suspends Ruto's PS hiring gender parity case

The High Court has suspended the hearing of a case filed to challenge President William Ruto’s appointment of Principal Secretaries (PSs) over failure to meet gender parity.

Justice Lawrence Mugambi said that he would not proceed with the case filed by Katiba Institute until the issue of whether the Constitutional Court had the powers to entertain it is resolved.

He observed that the Employment and Labour Relations Court (ELRC) could be the right forum to proceed with the case.

However, he was of the view that it was critical for clarity. Justice Mugambi observed that there was a pending appeal filed by Dr Magare Gikenyi before the Court of Appeal on whether the Labour Court had the authority to determine PSs ' appointment cases.

“It is evident that the issue of jurisdiction was raised in the Employment and Labour Relations Court, which is a court of equal status to the current court. It affirmatively found that it has jurisdiction to deal with the matter.”

“It would be remiss for this Court to continue the trial of this matter fully when it is clear that the factual matrix upon which it is premised is similar to what is before the ELRC (a Court of equal status that has already affirmatively assumed jurisdiction) and despite the issue of competing jurisdiction as between the High Court and the ELRC, the Court of Appeal has not authoritatively pronounced itself on the matter by clarifying with certainty which of the two Courts, between this Court and the ELRC, has jurisdiction over this matter,” said Justice Mugambi.

Dr Gikenyi, a Nakuru-based surgeon, had in December 2022 filed a petition challenging President Ruto’s appointment, pointing out that only 11 women were among the 51 Principal Secretaries, a mere 21 per cent representation that he argued fell far short of the constitutional two-thirds gender rule.

He further contended that the appointments made on December 2, 2022, did not adequately reflect ethnic, regional, and cultural diversity as mandated by the Constitution.

The petitioner also questioned President Ruto's appointment of Bernice Sialaal Lemedeket as Principal Administrative Secretary to the National Police Service Commission, arguing the Constitution does not provide for such a position.

However, the ELRC and Court of Appeal struck out the petition on technical grounds, holding that Dr Gikenyi should have first exhausted a statutory procedure allowing persons to submit evidence to Parliament contesting nominees' suitability before their approval.

The Attorney General opposed the case, submitting that the appellant's failure to exhaust the parliamentary process rendered the petition premature and incompetent and urged the court to find that the appellant had not raised a ripe or justiciable claim.

The state's legal team argued that the issues raised by Dr Gikenyi are inherently political and fall within the constitutional mandate of the Executive and Legislature, and therefore, the courts should not interfere with such presidential appointments.

The National Assembly had argued that the petitioner lacked jurisdiction to institute the petition due to the existence of an alternative statutory mechanism.

"The appeal fails to raise any substantive constitutional issues that would warrant the Court's intervention as the appeal does not challenge the Court of Appeal's interpretation or application of the Constitution but merely cites general constitutional provisions," the MPs told the court.

Parliament's lawyers further maintained that Section 6(9) of the Public Appointments (Parliamentary Approval) Act provides a clear avenue for individuals aggrieved by the shortlisting, nomination, vetting, or appointment of Principal Secretaries to seek redress before the National Assembly and that this statutory framework provides an adequate and effective remedy for grievances relating to presidential nominees.

On the other hand, Katiba failed the Public Service Commission for failing to publish and publicise the names of the 250 individuals forwarded to the President as potential nominees. It argued that this violated the requirement that public officers be transparent and provide information in a timely and accurate manner. 

The human rights organisation also argued that there was no gender balance.

PSC, in reply, argued that it had made public the names of the 477 shortlisted candidates and asked the public to give their views. It also argued that the number of candidates was selected to include marginalised and minority groups, the youth and persons living with disabilities.