The High Court has ruled that the advisory issued by former Chief Justice David Maraga recommending the dissolution of Parliament was unconstitutional and issued prematurely.
In its decision, the court found that the advisory was issued before the required constitutional steps had been followed, particularly the transmission of court orders to both Parliament and the Attorney General as outlined under Article 261(6)(b) of the Constitution.
High Court Says Process Was Not Followed
According to the bench, the Chief Justice ought to have ensured that the court orders directing Parliament to act were first officially communicated to the relevant institutions.
The judges held that issuing the advisory before completing this step breached constitutional procedure, rendering the entire process flawed.
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As a result, the court declared the advisory legally invalid from the outset.
The court also took the time to clarify Parliament’s status as a constitutional institution, stating that its mandate transcends individual members and extends beyond electoral cycles.
It noted that while parliamentary business, such as bills, may lapse over time, court orders remain binding and do not expire simply because a parliamentary term ends.
This distinction, the court said, reinforces the need for strict compliance with judicial directives.
Background to the Dispute
The advisory by Maraga followed several petitions filed over Parliament’s failure to enact legislation implementing the two-thirds gender rule.
The Constitution required Parliament to pass the necessary law within a set timeframe, following a High Court order issued in March 2017 that gave lawmakers 60 days to comply.
However, multiple attempts in both the National Assembly and Senate failed, prompting six petitions calling on the Chief Justice to advise the President to dissolve Parliament.
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Acting on these petitions, Maraga advised former President Uhuru Kenyatta to dissolve the House, arguing that the Constitution left him with no discretion once non-compliance had been established.
State House moved to challenge the advisory, with the Attorney General tasked to seek legal interpretation from the courts on its validity and the way forward.
At the time, government officials indicated that while the President could choose to ignore the advice, seeking judicial clarification was the preferred course of action.
The move also threatened to deepen tensions between the Executive and the Judiciary, which had already been strained by disputes over compliance with court orders.
Opposition from Parliament
Parliamentary leaders opposed the advisory, saying it was unrealistic and legally questionable.
National Assembly Speaker Justin Muturi argued that there was no explicit constitutional obligation requiring Parliament to pass specific legislation enforcing the two-thirds gender rule for elected members.
Leaders including Former Majority Leader Amos Kimunya and Former Minority Leader John Mbadi criticized the advisory, saying its timing and practicality were questionable, especially during the COVID-19 period.
Article 261(7) of the Constitution states that if Parliament fails to pass required laws after a court order, the Chief Justice must advise the President to dissolve Parliament.
Maraga maintained that his role was limited to confirming non-compliance and acting as required by law, insisting that the Constitution did not grant him discretion once the threshold had been met.
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