The High Court’s decision to quash former Chief Justice David Maraga’s 2020 advisory opinion recommending the dissolution of Parliament has reignited efforts to implement the long-delayed two-thirds gender principle.

In a landmark ruling on Friday, June 5, 2026, a five-judge bench declared Maraga’s advisory unconstitutional but simultaneously affirmed that a March 2017 High Court judgment directing Parliament to enact legislation implementing the gender rule remains valid.

The judges noted that Parliament had made several attempts to implement the constitutional requirement, including pursuing constitutional amendments aimed at giving effect to the principle.

However, none of the proposals succeeded after failing to attain the required threshold or lacking quorum during voting.

While setting aside the dissolution advisory, the court opened a fresh pathway for the enactment of the gender rule law.

“For this reason, it may still be transmitted to the Attorney-General and the Parliament,” the court said, adding that Parliament and the Attorney-General would determine the necessary steps towards enactment of the law and that time would begin running from the date of transmission.

“For these reasons, the evidence that we have given, we allow the petition and the advisory opinion by the Chief Justice Advisory dated 21 September 2020, is hereby declared unconstitutional.”

The ruling shifts the focus from dissolving Parliament to securing compliance with constitutional requirements on gender representation.

The Constitution requires the State to take legislative and other measures to ensure that no more than two-thirds of members of elective and appointive bodies are of the same gender.

2/3 gender rule concerns

Under the Fifth Schedule of the Constitution, Parliament was required to enact the necessary legislation within five years of the promulgation of the Constitution.

However, in a 2012 advisory opinion, the Supreme Court ruled that implementation of the principle would be achieved progressively.

In his 2020 advisory opinion, Maraga noted that several attempts had been made to pass the legislation and that multiple petitions had been filed seeking enforcement of the Constitution following Parliament’s failure to enact the law.

He stated that the Speakers of Parliament had informed him that two Bills aimed at implementing the principle were still pending before Parliament.

“Yet that is the clear result Kenyans desired for Parliament’s failure to enact legislation they deemed necessary. Consequently, it is my constitutional duty to advise Your Excellence to dissolve Parliament under Article 261(7) of the Constitution,” Maraga stated in the advisory.

The dispute stems from a March 2017 decision by then High Court Judge John Mativo, who gave Parliament 60 days to enact legislation complying with the constitutional requirement.

“I am satisfied that the first and second respondents have failed, refused and/or neglected to perform their constitutional mandate prescribed in the Constitution,” Justice Mativo ruled.

The case had been filed by the Centre for Rights Education and Awareness (CREAW) and Community Advocacy and Awareness Trust (CRAWN Trust), which argued that Parliament’s failure to enact the law violated women’s rights and undermined constitutional guarantees on equality and representation.

The organisations maintained that women had historically faced exclusion from political and electoral processes and that the 2010 Constitution sought to address this through mechanisms designed to enhance the participation of marginalised groups in governance.

In Friday’s judgment, the High Court emphasised that before the enforcement mechanism under Article 261 could be invoked, all constitutional procedures must be strictly followed.

“We agree with the counsel that the applicable rules must be complied with by those who seek justice in the courts,” the judges said.

The decision now places renewed pressure on Parliament and other State actors to finally enact legislation implementing the two-thirds gender principle, reviving a constitutional debate that has remained unresolved for more than a decade.