The High Court has ruled that former Chief Justice David Maraga’s advisory recommending the dissolution of Parliament over failure to implement the two-thirds gender rule was issued prematurely and did not meet constitutional requirements.
In a landmark judgment delivered on Friday, June 5, a five-judge bench found that the constitutional process outlined under Article 261 of the Constitution had not been fully exhausted before the advisory was issued.
The decision marks a significant development in one of Kenya’s most closely watched constitutional disputes, which has revolved around Parliament’s failure to enact legislation ensuring compliance with the two-thirds gender principle.
Court Finds Constitutional Process Was Incomplete
According to the judges, the advisory issued by Maraga in 2020 did not satisfy the constitutional threshold required before recommending the dissolution of Parliament.
The court held that the relevant court orders had not been formally transmitted to Parliament and the Attorney General as required under Article 261(6)(b) of the Constitution.
As a result, the judges concluded that the advisory was issued before all mandatory constitutional steps had been completed.
The matter was determined by a five-judge bench comprising Justices Tabitha Ouya, Patricia Nyaundi, Moses Ado, Lawrence Mugambi and Jairus Ngaah.
Their ruling effectively overturns the legal basis upon which the former Chief Justice had advised former President Uhuru Kenyatta to dissolve the 12th Parliament.
Background of the Dissolution Advisory
In September 2020, Maraga made history by advising then-President Uhuru Kenyatta to dissolve Parliament after lawmakers repeatedly failed to pass legislation implementing the constitutional gender principle.
The Constitution requires that no more than two-thirds of members in elective or appointive public bodies should be of the same gender.
Despite multiple court directives and years of debate, Parliament had failed to enact the necessary laws to achieve compliance.
Maraga argued at the time that Parliament’s continued failure amounted to a violation of the Constitution and warranted dissolution under Article 261.
The advisory sparked intense political and legal debate, with supporters describing it as a bold defence of constitutionalism while critics questioned its practicality and legality.
Gender Representation Still Below Constitutional Threshold
The issue remains unresolved several years later.
During the 12th Parliament, women occupied slightly more than 21 percent of seats in the National Assembly and approximately 31 percent in the Senate.
Current figures in the 13th Parliament show only modest improvement.
Women currently hold about 23 percent of seats in the National Assembly and 31.3 percent in the Senate, figures that remain below the constitutional requirement envisioned under the two-thirds gender rule.
The continued inability to achieve compliance has kept the issue at the centre of national conversations on governance, equality and constitutional implementation.
Nelson Havi Defends Maraga’s Position
Former Law Society of Kenya President and Senior Counsel Nelson Havi, who strongly supported Maraga’s position, reacted to the court’s decision by reiterating the former Chief Justice’s commitment to enforcing constitutional provisions.
Havi noted that both he and Maraga had played their roles in pushing for accountability regarding Parliament’s failure to comply with constitutional requirements.
“CJ David Maraga and I did our part in securing the advisory to the President to dissolve Parliament for failure of compliance with and none enactment of two-third rule laws,” Havi stated in a public post.
The senior counsel has consistently maintained that constitutional obligations should be enforced regardless of political consequences.
Maraga Faces Renewed Public Scrutiny
The court ruling comes at a time when Maraga has found himself at the centre of public discussion following allegations raised by former campaign secretary Shakira Wafula.
Wafula, who previously served under Maraga’s United Green Movement (UGM) party, recently alleged on social media that women were sidelined in the handling of sexual harassment complaints during the party’s 2025 campaign activities.
Her claims emerged shortly after Maraga joined anti-femicide and anti-infanticide demonstrators in Nairobi’s Central Business District on June 1.
The allegations generated significant debate online, with some critics questioning Maraga’s commitment to gender issues.
UGM Rejects Allegations
In response, the United Green Movement dismissed the allegations and defended its handling of the complaints.
The party stated that an Ad-Hoc Complaint Committee was established to independently investigate the claims.
According to UGM, Wafula initially declined to submit written complaints and later failed to participate in an official hearing held on November 26, 2025.
The committee subsequently found no evidence supporting the allegations presented publicly.
UGM further clarified that Maraga was never personally accused of sexual harassment and described recent claims against him as an attempt at character assassination and public disinformation.
The party also emphasized that women continue to play prominent leadership roles within Maraga’s political movement and his anticipated 2027 presidential campaign.
Significance of the Court Ruling
The High Court judgment is expected to influence future debates regarding constitutional enforcement mechanisms and the powers of the Chief Justice in situations where Parliament fails to meet constitutional obligations.
While the ruling nullifies Maraga’s dissolution advisory, it does not resolve the broader challenge of implementing the two-thirds gender rule.
The decision instead highlights the importance of following every constitutional procedure before taking drastic measures such as recommending the dissolution of Parliament.
As Kenya continues grappling with gender representation and constitutional compliance, the judgment is likely to remain a key reference point in future legal and political discussions surrounding governance reforms and parliamentary accountability.