A five-judge bench of Kenya’s High Court on Friday struck down a 2020 advisory by former Chief Justice David Maraga that recommended the dissolution of Parliament for failing to implement the Constitution’s two-thirds gender principle.
The ruling closes one of the country’s most consequential constitutional disputes, one that has lingered for years and tested the limits of judicial authority, parliamentary responsibility and executive action.
In a unanimous decision, the judges found that the advisory was issued before all the constitutional requirements had been met. As a result, they declared it unconstitutional and without legal effect.
“The Chief Justice advisory dated September 21, 2020, is hereby declared unconstitutional, null, and void,” the court ruled. The judges further ordered that the advisory be quashed and barred the President from acting on it.
The case stemmed from Parliament’s long-standing failure to enact legislation needed to implement the Constitution’s requirement that no more than two-thirds of members of elective or appointive bodies be of the same gender.
In 2020, Maraga advised the President to dissolve Parliament, arguing that lawmakers had repeatedly failed to comply with court orders and constitutional obligations. The move was hailed by gender rights advocates as a bold attempt to enforce constitutional accountability.
Petitioners supporting the advisory argued that Parliament’s continued inaction had triggered constitutional consequences. They maintained that the Chief Justice acted within his mandate and that the President had a duty to respond to the recommendation within a reasonable time.
But the High Court took a different view.
The judges found that crucial constitutional procedures had not been fully followed before the advisory was issued. In particular, they noted shortcomings in the transmission of court orders to Parliament and the Attorney General, steps required under Article 261 of the Constitution.
While recognising Parliament’s obligation to implement constitutional provisions, the court said enforcement mechanisms must follow the law and cannot operate automatically.
The judges rejected the argument that the advisory itself could compel the dissolution of Parliament or require immediate action from the Head of State.
Instead, they held that constitutional accountability must be pursued through established legal processes and remain subject to judicial scrutiny.
Even so, the court stressed that Parliament’s responsibility to implement the Constitution remains intact.
“The Constitution does not permit institutional failure to defeat its own enforcement mechanisms,” the bench observed, underscoring that constitutional duties survive changes in parliamentary terms and membership.
The judges also clarified that responsibility lies with Parliament as an institution rather than individual lawmakers. Constitutional obligations, they said, continue regardless of who occupies the seats in the National Assembly or Senate.
For supporters of the advisory, the decision is a setback in the push to enforce the two-thirds gender rule, a constitutional requirement that remains unfulfilled more than a decade after the promulgation of the 2010 Constitution.
For opponents, however, the ruling provides clarity on the limits of the Chief Justice’s advisory powers and reaffirms the need for constitutional procedures to be followed before such drastic measures can be considered.
The judgment leaves unresolved the broader challenge of achieving gender parity in Kenya’s political institutions. What it settles, however, is that the path to enforcing that principle must remain firmly within the framework set out by the Constitution.
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