A five-judge bench of the High Court sitting in Nairobi’s Constitutional and Human Rights Division has declared unconstitutional the advisory issued by former Chief Justice David Maraga in 2020, which recommended the dissolution of Parliament over its failure to implement the constitutional two-thirds gender principle.
The bench, comprising Justices Tabitha Ouya, Patricia Nyaundi, Moses Ado, Lawrence Mugambi, and Jairus Ngaah, delivered the landmark ruling on Friday, June 5, holding that the advisory was issued prematurely and did not comply with procedural requirements under the Constitution before such a recommendation could be transmitted to relevant state organs.
“The Chief Justice advisory dated September 21, 2020, is hereby declared unconstitutional, null, and void. The advisory is removed for purposes of quashing and is hereby quashed,” the bench ruled, further prohibiting the President from enforcing it.
The dispute traces back to Parliament’s prolonged failure to enact legislation giving effect to Articles 7, 8, and 81(b) of the Constitution, which collectively embed the principle that no more than two-thirds of members of elective or appointive public bodies should be of the same gender. Maraga had written to then-President Uhuru Kenyatta, the Speakers of both Houses, and the Attorney General, warning that continued non-compliance triggered constitutional consequences, including possible dissolution of Parliament.
Petitioners in the case argued that Parliament had defied court orders and constitutional timelines for over nine years, leaving the former Chief Justice with little choice but to invoke constitutional enforcement mechanisms. Some petitioners went further, urging that upon receipt of the advisory, the President was constitutionally bound to dissolve Parliament within 21 days — failing which Parliament would be deemed dissolved automatically.
The court rejected that interpretation. While affirming that Parliament carries a continuing constitutional obligation to enact the required legislation — one that survives changes in membership and successive electoral terms — the bench held that Maraga’s advisory could not be elevated into a self-executing instrument compelling automatic dissolution.
“The Constitution does not permit institutional failure to defeat its own enforcement mechanisms,” the judges observed, stressing that constitutional duties remain binding regardless of parliamentary transitions. However, they clarified that such enforcement must proceed strictly within established legal and judicial procedures.
The ruling effectively settles a long-running constitutional question over the legal standing of the Chief Justice’s advisory powers, drawing a firm line between moral persuasion and binding constitutional command.
Despite the ruling, Parliament’s obligation to legislate on gender equality remains very much alive — and unanswered.
