A five-judge High Court bench has declared unconstitutional the advisory issued by former Chief Justice David Maraga recommending the dissolution of Parliament over its failure to enact the two-thirds gender rule.

The judges, sitting in the Constitutional and Human Rights Division in Nairobi, quashed the advisory in its entirety, finding that it could not be treated as a binding constitutional command compelling the President to dissolve Parliament.

The ruling deals a major blow to petitioners who had argued that Parliament’s persistent failure to pass legislation giving effect to the gender principle had triggered the ultimate constitutional sanction of dissolution.

The dispute arose from petitions challenging Parliament’s failure to enact laws required to implement the two-thirds gender rule, which provides that not more than two-thirds of members of elective and appointive bodies should be of the same gender.

“The advisory issued by the Chief Justice could not, without more, operate as a self-executing instrument compelling the dissolution of Parliament,” the bench held.

The petitioners argued that Parliament had ignored repeated constitutional deadlines and court orders, leaving the Chief Justice with no option but to invoke Article 261 of the Constitution.

They maintained that Maraga acted within the Constitution when he wrote to the Speakers of the National Assembly and Senate, as well as the Attorney General, warning that continued non-compliance would attract constitutional consequences.

Some petitioners further urged the court to find that once the President received the advisory, he was bound to dissolve Parliament within a reasonable time, which they proposed should not exceed 21 days.

They also argued that if the President failed to act within that period, Parliament should be deemed dissolved by operation of law.

However, the bench rejected that interpretation, holding that the advisory could not be elevated into a self-executing constitutional instrument capable of automatically dissolving Parliament or compelling the President to act within a fixed timeline.

“Constitutional consequences, however grave, must be triggered within the four corners of the Constitution and not by implication or presumption,” the judges observed.

The court also found that the obligation to enact the gender law rests with Parliament as an institution, not individual Members of Parliament.

The bench emphasized that Parliament is a continuing constitutional organ whose duties survive electoral cycles and changes in membership.

“The Constitution does not permit institutional failure to defeat its own enforcement mechanisms,” the judges said, adding that Parliament’s obligations remain binding regardless of transitions from one House to another.

The judges further noted that a new Parliament cannot escape duties left unfulfilled by its predecessor, especially where the Constitution imposes a continuing obligation to enact legislation.

In its final orders, the court declared that Maraga’s advisory was unconstitutional to the extent that it purported to compel or mandate the dissolution of Parliament.

“The advisory is hereby quashed in its entirety,” the bench ruled.

Although the court faulted the advisory, it affirmed that Parliament remains under a constitutional duty to enact legislation required to give effect to the two-thirds gender principle.

Article 261(7) of the Constitution provides that where Parliament fails to enact required legislation after a court order, the Chief Justice shall advise the President to dissolve Parliament, and the President shall dissolve it.