The Supreme Court has overturned decisions by the Employment and Labour Relations Court (ELRC) and the Court of Appeal that dismissed a constitutional petition challenging the appointment of 51 Principal Secretaries on grounds of gender balance and diversity.
In a judgment delivered on Friday, a five-judge bench led by Chief Justice Martha Koome ruled that the lower courts wrongly applied the doctrine of exhaustion to bar the petition filed by Dr. Magare Gikenyi, a trauma and general surgeon.
Dr. Gikenyi had challenged the December 2022 appointments, arguing that the composition of the Principal Secretaries violated the Constitution, as only 11 out of the 51 appointees were women, representing 21 per cent, contrary to the two-thirds gender principle.
He further questioned the appointment of Bernice Sialaal Lemedeket as Principal Administrative Secretary to the National Police Service Commission, arguing that the position was not provided for under the Constitution.
The ELRC struck out the petition, holding that Dr. Gikenyi ought to have first submitted objections to Parliament under Section 6(9) of the Public Appointments (Parliamentary Approval) Act, which allows members of the public to contest the suitability of nominees during approval hearings. The Court of Appeal upheld that decision.
However, the Supreme Court disagreed, finding that the lower courts mischaracterized the nature of the dispute.
“The appellant’s contention was not with the suitability of the candidates, but rather the overall composition of the appointees and what he considered to be a prima facie failure to reflect the two-thirds gender rule and a balance of ethnic, regional and cultural diversity,” the court stated.
The judges clarified that Section 6(9) of the Act is limited to challenges on the suitability of a candidate and does not extend to broader constitutional questions concerning the collective composition of appointments.
“The appellant’s challenge went beyond the suitability of individual nominees and touched on broader constitutional questions regarding adherence to the two-thirds gender principle and the equitable representation requirements under Articles 10, 27, 73, 75 and 232 of the Constitution, issues that squarely fall within the province of judicial determination,” the bench held.
In rejecting a blanket application of the exhaustion doctrine, the court relied on its earlier decision in reiterating that constitutional litigation should not be stifled by procedural technicalities.
“The right to access the court for redress of alleged constitutional violations should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms,” the judges emphasized.
Despite ruling in Dr. Gikenyi’s favour on jurisdiction, the Supreme Court declined to determine the merits of the petition or remit it back to the trial court, citing ongoing proceedings before the ELRC, including Petition No. E513 of 2022 which will now proceeds to its logical conclusion
“We therefore emphatically decline the invitation to pre-empt their determination by pronouncing ourselves on the issues therein,” the court said.
The court ordered each party to bear its own costs due to the public interest nature of the case and directed that the Kshs. 6,000 security deposit paid by Dr. Gikenyi be refunded.
