A five-judge bench of the High Court's Constitutional and Human Rights Division in Nairobi has ruled that the advisory issued by former Chief Justice David Maraga recommending the dissolution of Parliament for failing to implement the two-thirds gender principle was unconstitutional and has set it aside in its entirety.
The court held that the advisory, which had been issued pursuant to the interpretation of constitutional provisions requiring progressive realization of gender equality in elective bodies, did not amount to a binding constitutional command capable of compelling the President to dissolve Parliament.
The dispute arose from petitions challenging Parliament’s prolonged failure to enact legislation giving effect to Articles 7, 8, and 81(b) of the Constitution of Kenya, which collectively embed the two-thirds gender principle. Petitioners argued that Parliament had failed in its constitutional duty, despite Article 261(1) setting time-bound obligations for legislation necessary to implement the Constitution.
They further contended that former Chief Justice Maraga acted within constitutional bounds when he issued letters to the Speakers of both Houses of Parliament and to the Attorney General, warning that continued non-compliance would trigger constitutional consequences, including possible dissolution of Parliament.
According to the petitioners, Parliament had disregarded repeated calls to enact the required legislation, leaving the Chief Justice with no option but to invoke the spirit and letter of the Constitution to ensure compliance.
They argued that the advisory should be interpreted as a constitutional directive addressed to the President in his capacity as Head of State and Government.
A section of the petitioners further urged the court to find that upon receipt of such an advisory, the President is constitutionally bound to dissolve Parliament within a reasonable period, which they proposed should not exceed 21 days, failure to which Parliament would be deemed dissolved by operation of law.
They also advanced the argument that failure by Parliament to comply with constitutional obligations renders it incapable of participating in proceedings before the court on matters arising from its own alleged constitutional breaches.
On the issue of institutional accountability, the bench held that the constitutional duty to enact legislation is vested in Parliament as an institution rather than in individual Members of Parliament. The judges underscored that Parliament is a permanent constitutional body whose obligations endure despite changes in its composition from one term to another.
The court observed that constitutional enforcement cannot be undermined by institutional inaction, emphasizing that constitutional duties remain operative and enforceable irrespective of parliamentary transitions.
At the same time, the bench rejected the petitioners’ reliance on the Chief Justice’s advisory opinion, finding that it could not be treated as a self-executing constitutional directive requiring the automatic dissolution of Parliament or imposing a mandatory timeline within which the President must act.
The judges further stated that although the Constitution contemplates consequences for a sustained failure to enact required legislation, such consequences can only arise through proper constitutional interpretation and adjudication. They cannot be assumed to take effect automatically or independently of a judicial determination.
In its final orders, the court quashed the advisory issued by Chief Justice Maraga and declared that it was unconstitutional to the extent that it purported to compel or mandate the dissolution of Parliament.
