Court declares CJ’s advisory to dissolve Parliament premature
By Zipporah Ngwatu, June 5, 2026A five-judge bench has ruled that the advisory issued by the former Chief Justice David Maraga recommending the dissolution of Parliament over its failure to implement the two-thirds gender principle was premature.
In a detailed judgement delivered on Friday, June 5, 2026, Justices Tabitha Wanyama, Patricia Nyaundi, Jairus Ngaah, Lawrence Mugambi and Moses Ado found that CJ’s advisory was unconstitutional as it was not transmitted to the Attorney General and the Parliament as required by the Constitution.
In a ruling touching on the long-standing dispute over Parliament’s failure to implement the two-thirds gender rule, the five-judge bench has held that orders issued under Article 261(6)(b) of the Constitution do not lapse with the expiry of a parliamentary term and continue to bind Parliament until the constitutional requirements are fulfilled.
“We are of the firm position that a declaratory order under Article 261(6)(b) is not equivalent to a parliamentary bill,” the bench ruled.
The bench has rejected arguments that the constitutional process became spent following the end of the 12th Parliament, holding that constitutional commands cannot be defeated by the passage of time or parliamentary procedures.
“Unlike bills of Parliament which lapse with the expiry of the term of Parliament, a court order under Article 261(6)(b) does not die due to the motions attached,” the judges ruled.
The court noted that the parliamentary rules cannot override constitutional obligations.
“But such a view is unfeasible, as it will elevate constitutional rules above the constitutional provisions,” the judges stated.
Further, the court has emphasised that the constitutional duty to enact legislation implementing the two-thirds gender rule remains in force.
The judges endorsed the Court of Appeal’s interpretation of Article 261, noting that its purpose was to prevent legislative inertia and ensure the implementation of constitutional reforms envisioned under the 2010 Constitution.
“The Court of Appeal gave a bit of the history of Article 261(7), which affirmed the position that an order under Article 261(6)(b) is intended for the execution of Parliament and survives the parliamentary term,” the bench observed.
Citing records of the Committee of Experts that drafted the Constitution, the judges said the framers deliberately established a mechanism to compel Parliament to enact laws within specified timelines.
“We ask ourselves, why did the Constitution limit necessity to present its own interests in Article 261? In our view, it was simply a great impediment to legislative inertia,” the court held.
The judges further noted that the Constitution provides a step-by-step enforcement mechanism where citizens may seek court orders compelling Parliament to enact legislation and that dissolution only arises after constitutional procedures have been exhausted.
“The new Constitution also set out a procedure to be followed if a law was not enacted within the scope of time,” the court ruled.
Although the court found the dissolution advisory premature, it made clear that Parliament remains under a continuing constitutional obligation to enact the necessary legislation and cannot escape that duty merely because a parliamentary term has ended.
On September 21, 2020, former CJ Maraga gave an advisory to retired president Uhuru Kenyatta to dissolve the parliament for failure to meet the principle of gender equality in representation.
In the advisory, Maraga stated that Parliament had refused to comply with the High Court order to enact legislation required to implement the two-thirds gender rule for over nine years.
However, the National Assembly, Senate, Attorney General, Third Alliance Party, High Court Lawyer Adrian Kamotho Njenga, and two citizens, Leinah Konchellah and Mohsen Munasar, among others, challenged the former CJ advisory.