A five-judge bench sitting in the Constitutional and Human Rights Division of the High Court in Nairobi declared unconstitutional the advisory issued by former Chief Justice David Maraga recommending the dissolution of Parliament over failure to enact the two-thirds gender rule.
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.
The court said 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 question of institutional responsibility, the bench affirmed that the obligation to enact legislation under the Constitution rests with Parliament as an institution, not with individual Members of Parliament. The court emphasized that Parliament is a continuing constitutional organ whose duties persist across successive terms.
“The Constitution does not permit institutional failure to defeat its own enforcement mechanisms,” the judges observed, adding that constitutional obligations remain binding and enforceable regardless of parliamentary transitions.
However, in rejecting the petitioners’ interpretation of the Chief Justice’s advisory, the court held that the advisory could not be elevated into a self-executing constitutional instrument compelling automatic dissolution of Parliament or binding the President to act within a fixed timeline.
The bench further noted that while the Constitution anticipates consequences for persistent failure to enact legislation, such consequences must be triggered strictly within the framework of constitutional interpretation and cannot be presumed or self-executed outside judicial determination.
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