A five-judge bench of the Constitutional and Human Rights Division 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.

In its ruling, the bench found that the advisory did not constitute a binding constitutional directive capable of compelling the President to dissolve Parliament. The judges held that while the Constitution envisions enforcement mechanisms for non-compliance, such measures cannot be triggered through an advisory lacking clear legal force.

The case stemmed from a series of petitions challenging Parliament’s prolonged failure to enact legislation required to operationalize constitutional provisions on gender equality, particularly those anchored in Articles 7, 8, and 81(b). The petitioners argued that Parliament had neglected its constitutional mandate despite Article 261(1), which sets timelines for the enactment of legislation necessary to implement the Constitution.

They maintained that Chief Justice Maraga acted within his constitutional authority by issuing notices to the Speakers of both Houses and the Attorney General, warning that continued inaction could result in serious constitutional consequences, including the possible dissolution of Parliament.

According to the petitioners, Parliament’s repeated failure to comply left the Chief Justice with no alternative but to invoke constitutional safeguards. They further argued that the advisory should be interpreted as a directive obligating the President, in his capacity as Head of State, to dissolve Parliament within a reasonable timeframe, which they suggested should not exceed 21 days.

Additionally, some petitioners contended that Parliament, having failed to meet its constitutional obligations, should not be permitted to participate in proceedings arising from its own alleged violations.

However, the court rejected these arguments, emphasizing that the responsibility to enact legislation lies with Parliament as an institution rather than individual lawmakers. The bench underscored that Parliament is a continuous constitutional entity whose obligations persist across successive terms.

“The Constitution does not allow institutional failure to undermine its enforcement,” the judges stated, affirming that constitutional duties remain binding regardless of changes in parliamentary composition.

Despite acknowledging the seriousness of Parliament’s failure to enact the required legislation, the court held that the Chief Justice’s advisory could not be elevated to a self-executing instrument. It ruled that the advisory lacked the legal authority to automatically trigger the dissolution of Parliament or to impose a mandatory timeline on the President.

The judges further clarified that any constitutional consequences for failure to legislate must arise strictly through proper constitutional interpretation and judicial processes, not through presumptive or unilateral action.

In its final orders, the court quashed the advisory in its entirety, declaring it unconstitutional to the extent that it purported to compel or mandate the dissolution of Parliament.