High Court Declares CJ Maraga Advisory on Parliament Dissolution Unconstitutional

High Court Declares CJ Maraga Advisory on Parliament Dissolution Unconstitutional

The High Court has declared unconstitutional an advisory issued by former Chief Justice David Maraga recommending the dissolution of Parliament over its failure to implement the constitutional two-thirds gender principle, marking a significant development in a long-running constitutional debate.

In a judgment delivered on Friday, June 5, a five-judge bench ruled that the advisory did not satisfy the constitutional threshold required to trigger the dissolution of Parliament and was therefore issued prematurely.

The bench, comprising Justices Tabitha Ouya, Patricia Nyaundi, Moses Ado, Lawrence Mugambi, and Jairus Ngaah, found that while the implementation of the two-thirds gender rule remains a constitutional obligation, the process leading to the recommendation for dissolution had not fully met the legal requirements set out in the Constitution.

The ruling brings to a close years of legal and political uncertainty surrounding Maraga’s 2020 advisory to the President, which was prompted by Parliament’s repeated failure to enact legislation ensuring compliance with gender representation requirements.

The Constitution requires that no more than two-thirds of members of elective public bodies be of the same gender. However, successive Parliaments have struggled to pass laws necessary to fully implement the provision despite multiple court orders.

At the time Maraga issued the advisory, women represented slightly over 21 percent of members in the National Assembly and 31 percent in the Senate. In the current 13th Parliament, women occupy approximately 23 percent of seats in the National Assembly and 31.3 percent in the Senate, figures that remain below the constitutional target.

The decision had been closely watched by legal experts, civil society groups, and political leaders, many of whom viewed the case as a critical test of constitutional accountability and the enforcement of gender equality provisions.

Former Law Society of Kenya (LSK) President and Senior Counsel Nelson Havi, who supported the push that led to the advisory, defended Maraga’s actions following the judgment.

“CJ David Maraga and I did our part in securing the advisory to the President to dissolve Parliament for failure of compliance with and non-enactment of two-thirds rule laws,” Havi said in a public statement.

Ahead of the ruling, Havi had also dismissed criticism directed at Maraga over gender-related matters, arguing that the former Chief Justice had consistently championed efforts aimed at achieving gender balance in public institutions.

The High Court decision comes amid renewed public attention on Maraga following his participation in anti-femicide and anti-infanticide demonstrations held in Nairobi’s Central Business District on June 1.

At the same time, Maraga has faced allegations from former United Green Movement (UGM) campaign official Shakira Wafula, who claimed on social media that women were sidelined in the handling of sexual harassment complaints during the party’s 2025 campaign activities.

In response, the UGM party strongly rejected the allegations, stating that established procedures were followed and that an independent Ad-Hoc Complaint Committee was formed to investigate the claims.

According to the party, the committee reviewed the matter and ultimately found no evidence supporting the accusations. UGM further maintained that Maraga was never personally accused of harassment and described the recent allegations as an attempt at character assassination.

“Women continue to play a central role in David Maraga’s 2027 campaign and the party remains committed to fairness, inclusion and due process,” the party stated.

The High Court ruling is expected to reignite debate over how Kenya should achieve compliance with the two-thirds gender rule, a constitutional requirement that remains unmet more than a decade after the promulgation of the 2010 Constitution.

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High Court Declares CJ Maraga Advisory on Parliament Dissolution Unconstitutional