A five-judge bench of the High Court in Nairobi has declared unconstitutional an advisory issued by former Chief Justice David Maraga recommending the dissolution of Parliament over its failure to implement the two-thirds gender rule, finding that it did not meet the required constitutional threshold and was issued prematurely.
The bench comprising Justices Tabitha Ouya, Patricia Nyaundi, Moses Ado, Lawrence Mugambi and Jairus Ngaah ruled that the advisory could not be treated as a binding constitutional directive capable of compelling the President to dissolve Parliament. The judges further held that the communication was issued before the necessary court processes had been formally transmitted to Parliament and the Attorney General as required under Article 261(6)(b).
At the centre of the dispute were petitions challenging Parliament’s prolonged failure to enact legislation to operationalise Articles 7, 8 and 81(b) of the Constitution, which entrench the two-thirds gender principle in elective and appointive bodies. The petitioners argued that Parliament had repeatedly failed in its constitutional obligation despite clear timelines under Article 261(1) for the enactment of implementing legislation.
They further maintained that former Chief Justice Maraga acted within his constitutional mandate when he warned state organs of the consequences of continued non-compliance, including the possible dissolution of Parliament. According to the petitioners, the advisory should have been interpreted as a constitutional instruction directed at the President, requiring him to dissolve Parliament within a reasonable time, which some of them proposed should not exceed 21 days.
Another argument advanced was that Parliament, having allegedly failed in its constitutional duty, could not continue participating in proceedings related to its own breach. The petitioners insisted that continued legislative inaction undermined constitutional supremacy and necessitated enforcement measures to compel compliance.
However, the court rejected this interpretation, holding that while Parliament bears the responsibility to enact laws necessary for constitutional implementation, such obligations cannot translate into automatic institutional dissolution without due legal process. The judges emphasized that Parliament remains a continuing constitutional institution whose duties are not extinguished by electoral cycles.
“The Constitution does not permit institutional failure to defeat its own enforcement mechanisms,” the bench observed, stressing that constitutional obligations remain binding regardless of parliamentary transitions.
The court further clarified that although the Constitution anticipates consequences for persistent legislative inaction, such consequences must arise strictly through established constitutional and judicial processes, and cannot be self-executing or triggered by advisory opinions alone.
In its key findings, the bench ruled that the advisory issued by the former Chief Justice did not amount to a constitutional command capable of binding the executive or compelling dissolution of Parliament. It noted that elevating such an advisory to that level would amount to a distortion of the separation of powers framework.
Ultimately, the court quashed the advisory in its entirety, declaring it unconstitutional to the extent that it purported to mandate or compel the dissolution of Parliament. The decision settles a long-running constitutional debate on the legal effect of the advisory and reinforces the limits of judicial and executive interaction in enforcing legislative compliance.
