NAIROBI, Kenya Jun 6 – A five-judge bench of the High Court sitting in the Constitutional and Human Rights Division in Nairobi has declared unconstitutional an advisory issued by former Chief Justice David Maraga recommending the dissolution of Parliament for failure to implement the two-thirds gender rule.<\/p>\n\n\n\n
In the ruling, the judges quashed the advisory in its entirety, holding that it could not be interpreted as a binding constitutional instrument compelling the President to dissolve Parliament.<\/p>\n\n\n\n
The petitions before the court arose from Parliament\u2019s prolonged failure to enact legislation required under Articles 7, 8 and 81(b) of the Constitution, which seek to guarantee compliance with the constitutional principle that no more than two-thirds of elective bodies should be of the same gender.<\/p>\n\n\n\n
Petitioners argued that Parliament had repeatedly failed to fulfil its constitutional obligation despite Article 261(1), which imposes timelines for legislation necessary to implement constitutional provisions.<\/p>\n\n\n\n
They maintained that Maraga acted within the law when he issued advisory letters to the Speakers of both Houses of Parliament and the Attorney General warning that continued non-compliance could trigger constitutional consequences, including dissolution of Parliament.<\/p>\n\n\n\n
According to the petitioners, Parliament ignored repeated calls to enact the legislation, forcing the then Chief Justice to invoke constitutional enforcement mechanisms aimed at safeguarding the Constitution.<\/p>\n\n\n\n
Some of the petitioners further urged the court to find that the President was constitutionally obligated to dissolve Parliament within a reasonable period after receiving the advisory, proposing a timeline of 21 days.<\/p>\n\n\n\n
Others argued that Parliament\u2019s continued failure to comply with constitutional requirements undermined its legitimacy in legal proceedings relating to its own constitutional breaches.<\/p>\n\n\n\n
In its judgment, the bench affirmed that the obligation to enact legislation lies with Parliament as a constitutional institution and not individual legislators.<\/p>\n\n\n\n
The court observed that Parliament is a continuing constitutional organ whose obligations remain binding across successive terms.<\/p>\n\n\n\n
\u201cThe Constitution does not permit institutional failure to defeat its own enforcement mechanisms,\u201d the judges stated.<\/p>\n\n\n\n
The bench stressed that constitutional duties remain enforceable regardless of changes in parliamentary membership or transitions between different sessions.<\/p>\n\n\n\n
However, the court rejected the argument that Maraga\u2019s advisory automatically triggered dissolution of Parliament or imposed a mandatory obligation on the President to act within a fixed period.<\/p>\n\n\n\n
The judges held that while the Constitution contemplates consequences for persistent failure to enact legislation, such consequences must arise strictly through constitutional interpretation and judicial processes.<\/p>\n\n\n\n
According to the court, constitutional sanctions cannot be presumed or self-executed outside the framework established by law.<\/p>\n\n\n\n
The bench consequently declared the advisory unconstitutional to the extent that it purported to compel or mandate dissolution of Parliament.<\/p>\n\n\n\n
The ruling is expected to shape future constitutional interpretation on separation of powers, enforcement of constitutional obligations and the scope of advisory powers exercised by the office of the Chief Justice.<\/p>\n","protected":false},"excerpt":{"rendered":"
The judges quashed the advisory in its entirety, holding that it could not be interpreted as a binding constitutional instrument compelling the President to dissolve Parliament.<\/p>\n","protected":false},"author":12616,"featured_media":785253,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1,4625,26],"tags":[59210,46884,15248,1981,28914,491,43866,59209,59211,3980],"coauthors":[407],"class_list":["post-803002","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-kenya","category-national-news","category-top-stories","tag-article-81b","tag-constitutional-petition-kenya","tag-david-maraga","tag-featured","tag-high-court-kenya","tag-kenya","tag-kenya-constitution","tag-parliament-dissolution-advisory","tag-parliament-gender-law","tag-two-thirds-gender-rule"],"yoast_head":"\n