From gender equality to public participation, the promises Kenya has yet to keep

Women MPs led by Nairobi Woman Representative Esther Passaris condemn former Deputy President Rigathi Gachagua over attacks targeting women leaders at Parliament buildings in Nairobi on August 25, 2026. [Elvis Ogina, Standard]

When Kenyans voted for the 2010 Constitution, they promised themselves a new Kenya founded on equality, accountability, devolution and citizen participation.

Sixteen years later, some of those promises remain elusive, with courts repeatedly reminding state institutions that constitutional obligations are not optional.

The constitution was meant to fundamentally change the relationship between citizens and the State, taking power closer to the people, opening government to public scrutiny, guaranteeing equal representation and making citizens active participants in decisions affecting their lives.

Yet, on the eve of Katiba @16, a trail of court battles tells another story.

From the composition of the Cabinet and Parliament to the creation of presidential advisory offices, healthcare reforms and major infrastructure projects, Kenyans and civil society organisations have repeatedly gone to court to challenge government actions they say violate the supreme law.

In some cases, judges have stopped government plans altogether.

In others, they have ordered the state to go back to the drawing board and comply with the Constitution.

Perhaps no constitutional promise has been as stubbornly elusive as the two-thirds gender principle.

Article 27(8) requires the State to take legislative and other measures to ensure that no more than two-thirds of members of elective or appointive bodies are of the same gender, while Article 81(b) applies the principle to elective public bodies.

Sixteen years later, the country is still fighting over how to make that provision a reality.

The latest setback came on June 30, 2026, when the High Court declared President William Ruto's current Cabinet unconstitutional for breaching Article 27(8) which bars more than two-thirds of an appointive body's members from being of the same gender.

The three-judge bench found that Ruto's 25-member Cabinet comprised 18 men and only seven women, or about 28 per cent female representation, meaning at least nine members should be women to meet the constitutional threshold.

The judges directed the President to make Cabinet appointments compliant with Article 27(8) within 120 days, a deadline that has now run for over 52 days since the ruling on June 30, 2026, with the President yet to make the required changes.

National Assembly Speaker Moses Wetang'ula and Parliament have since filed a Notice of Appeal, contesting the finding that the gender requirement applies immediately, rather than progressively, to appointive offices.

Unless the Court of Appeal grants a stay, the 120-day clock continues to run.

It is not the first time a President has been told to comply with the law and constitution in appointments.

In December 2016, the late High Court judge Joseph Ong'uto found former President Uhuru Kenyatta's Cabinet, then comprising 18 men and five women, in breach of the two-thirds gender principle.

“The President is enjoined by the Constitution to dismantle the uneven gender attributes of our society,” he ruled.

The courts have also repeatedly confronted Parliament over its failure to enact legislation required to implement the gender rule.

At every election cycle, political parties and Parliament confront the same constitutional dilemma: how to ensure that elective bodies reflect the requirement that no more than two-thirds of their members are of the same gender.

The Supreme Court, in its 2012 advisory opinion, recognised the historical problem behind the provision, noting that women had for decades remained at “bare nominal levels” in elective and other public bodies because of discriminatory practices and gender-indifferent laws.

The Court's intervention was supposed to provide a constitutional roadmap.

Instead, the country has continued to hold elections in which the gender threshold has not been achieved in the National Assembly and Senate, leaving the country dependent on nominated seats and other mechanisms to partially correct the imbalance.

The courts have repeatedly reminded Parliament that the Constitution is not a menu from which institutions can select the provisions they prefer. 

In 2017, the High Court declared that the National Assembly and Senate had failed in their constitutional obligation to enact legislation necessary to ensure that no more than two-thirds of their members were of the same gender.

The Court of Appeal comprising Justices Martha Koome, now Chief Justice, Patrick Kiage, Daniel Musinga, Jamila Mohammed and Sankale ole Kantai upheld the substance of that decision in 2019, finding that Parliament had failed to enact legislation necessary to implement the gender principle.

The appellate court particularly condemned the parliament over the continued failure.

It observed that elections had not produced the required gender balance and that this was precisely why the Constitution had introduced the gender principle.

“The method has failed to work since independence,” the judges said in reference to relying solely on elections to achieve the required gender balance.

The failure eventually produced one of the most dramatic constitutional moments in Kenya's post-2010 history.

On September 21, 2020, then Chief Justice David Maraga advised former President Uhuru to dissolve Parliament because of its failure to enact legislation implementing the two-thirds gender principle.

The advisory followed years of court orders and parliamentary inaction.

That advisory eventually returned to court through 10 petitions. In June 2026, a five-judge High Court bench quashed it, holding that it was never a binding command to dissolve Parliament.

The gender question has now travelled from the courts, to a Chief Justice's desk and back to court again, without Parliament settling the legislative formula required to fully implement the principle.

If gender equality is one unfinished promise, public participation is another.

Article 10 places public participation among Kenya's national values and principles of governance, while Article 118 requires Parliament to facilitate public participation in its legislative business.

The Supreme Court, in the landmark British American Tobacco Kenya decision, held that public participation must be real, purposive and meaningful.

Citizens must have reasonable notice, a reasonable opportunity to participate and sufficient information to make their participation meaningful.

That principle has since been repeatedly invoked to challenge government policies and projects.

Few administrations in Kenya's post-2010 history have been tripped up by Article 10 as frequently or as expensively as President William Ruto's.

The proposed takeover and expansion of Jomo Kenyatta International Airport by India's Adani Group, estimated at about $1.85 billion, became a major test of the principle.

The Law Society of Kenya challenged the proposed 30-year agreement, raising questions over transparency, procurement and public participation. The High Court subsequently suspended the deal.

A separate proposed $736 million KETRACO-Adani electricity transmission deal was also challenged, with the High Court suspending the transaction over concerns about procurement, transparency and public participation.

The same constitutional test was applied to Ruto's healthcare reforms.

In July 2024, a three-judge High Court bench declared the Social Health Insurance Act, the Primary Health Care Act and the Digital Health Act unconstitutional for lack of proper public participation.

The laws were central to the Government's plan to overhaul Kenya's healthcare system and replace NHIF with the Social Health Authority.

In December 2025, the High Court also issued conservatory orders suspending the multi-billion-shilling Kenya-US Health Cooperation Framework over inadequate public participation and concerns about the handling of Kenyans' sensitive health data.

The courts have also intervened in education and State asset management.

In April 2025, then High Court judge Chacha Mwita nullified the directive forcing parents to pay school fees exclusively through eCitizen, along with its accompanying convenience levy, ruling that it lacked a legal foundation and had been issued without public participation.

Infrastructure has not been spared either.

In a judgment delivered this July, Justice Gregory Mutai declared the Sh12 billion Ngong-Riruta commuter railway unconstitutional, finding that it had proceeded without parliamentary approval, competitive procurement, a feasibility study or lawful public participation.

He held that consultations came only after the contract had been signed and construction had begun.

“The public participation conducted in relation to the Ngong-Riruta project was retroactive, inadequate and constitutionally defective since consultations with affected communities were conducted only after the project had already been commissioned and construction had begun,” Justice Mutai stated.

Even the 2023 housing levy was struck down on comparable grounds before the Supreme Court, in October 2024, found that Kenya had no statute governing how public participation should be conducted and directed Parliament to legislate.

The creation of public offices without following constitutional procedures has also produced repeated judicial setbacks for successive administrations.

In January, Justice Bahati Mwamuye declared unconstitutional the creation of various offices of advisers to President Ruto, including those held by economist David Ndii, law professor Makau Mutua and former diplomat Monica Juma as well as the appointment of other individuals to the positions. 

The case was filed by Katiba Institute, a civil society organisation that has increasingly used constitutional litigation to challenge Executive decisions.

The court found that the Executive had bypassed the substantive constitutional role of the Public Service Commission, failed to properly address the fiscal implications of the positions and did not undertake public participation.

The judge made an important observation: the more a government decision affects the public, the greater the obligation to involve citizens.

Because presidential advisers were public offices with implications for governance and public resources, their creation was a matter of significant national concern.

Justice Mwamuye held that there had been no meaningful public participation.

There was also no open recruitment, shortlisting based on objective criteria or independent interviews.

The Constitution's other major promise was devolution.

Forty-seven county governments were created to bring government closer to citizens, promote equitable development and give communities greater control over resources and decisions affecting them.

Sixteen years later, devolution has undoubtedly transformed governance, but disputes over functions, finances and the relationship between national and county governments remain common.

In the 2013 Speaker of the Senate advisory opinion, the Supreme Court stressed the Senate's constitutional role in protecting devolution, warning that bypassing it on county-related legislation would defeat that purpose.

The courts have also dealt with disputes over the transfer of functions and county finances, with counties repeatedly challenging delayed or incomplete revenue transfers from the national government.

Sixteen years later, perhaps the most remarkable feature of Kenya's constitutional journey is not the number of provisions that remain contested.

Some things have changed for good. Devolution is real and irreversible.

Women now hold more public offices than they did before 2010. Public participation has evolved into an enforceable constitutional requirement rather than a mere courtesy.

Citizens, lawyers, civil society organisations, professional bodies and activists have also transformed Article 22, which allows anyone to institute proceedings where a right or fundamental freedom has been denied, violated or threatened, into one of the Constitution's most powerful enforcement mechanisms.

Organisations such as Katiba Institute, the Law Society of Kenya, FIDA and the Kenya Human Rights Commission have repeatedly taken government decisions to court.

But the pattern is unmistakable: a government office is created, an appointment made or a deal signed, and only then do citizens discover whether the Constitution was actually followed.

The two-thirds gender rule remains unmet in the Cabinet. Devolution still fights over money and mandate. Public participation still risks becoming, in the words of the courts, theatre rather than substance.

Katiba @16 is not a question of whether the Constitution made these promises. It did, in plain text, in 2010.

The question still open is why Kenyans keep needing a court order to collect on them.