MPs escape the sack over gender rule, but not yet out of the woods

Members of Parliament can breathe a sigh of relief for now, but they are not yet out of the woods. In a judgment delivered yesterday, the High Court found that former Chief Justice David Maraga jumped the gun when he issued an advisory recommending the dissolution of Parliament. 

The court held that Maraga failed to direct the Registrar of the High Court to formally transmit the relevant orders to the Attorney General and Parliament, notifying them of the alleged violations before forwarding his advisory to the President.

The five-judge bench comprising Justices Tabitha Wanyama, Patricia Nyaundi, Jairus Ngaah, Lawrence Mugambi and Moses Ado acknowledged that dissolution is a sanction for continued defiance of court orders.

However, they emphasised that it follows a distinct procedural path from ordinary contempt proceedings, which require only that a party be aware of the orders. Although Parliament and the Attorney General were parties to the original cases, the former Chief Justice’s advisory missed this single but crucial step, rendering it legally unsound at the time it was issued. Nevertheless, the judges left the door open for future action.

They ruled that Parliament is a continuing institution whose responsibilities transcend individual membership. Although the orders were originally directed at the 11th Parliament, its successors remain bound by those unfulfilled obligations if the required actions were never taken. Institutional duties do not lapse with each election cycle.

As a result, the court made it clear that a fresh petition could still be filed before the current Chief Justice, potentially leading to the dissolution of the present Parliament for failure to enact the two-thirds gender rule.

This landmark case revolves around Article 81(b) of the Constitution, which requires that not more than two-thirds of elective and appointive positions in public bodies be held by persons of the same gender. Despite years of court orders and deadlines, successive Parliaments have failed to pass the necessary legislation to implement this provision.

The 12th Parliament has sought to distance itself from the failures of previous Houses, arguing that it is practically impossible to achieve gender balance through ordinary legislation alone. Through senior counsel Ahmednasir Abdullahi, Parliament argued that the matter should instead be resolved through a national referendum. Ahmednasir argued that the Constitution places the duty on the State as a whole, not Parliament alone.

He criticised Maraga for unfairly singling out the Legislature while overlooking the Executive’s role. According to him, there is no clear mandate requiring Parliament to legislate the two-thirds gender principle, and some judicial interpretations amount to “judicial sloganeering”.

He maintained that the failures of previous Parliaments cannot be visited upon the current one, as each House’s term expires after five years

The Attorney General supported this position through senior State counsel Emmanuel Bitta, arguing that Maraga’s advisory amounted to an unlawful attempt to trigger a general election outside constitutional timelines.

He said dissolution of Parliament results in a nationwide poll, not by-elections, and therefore orders targeting the 11th Parliament could not automatically apply to subsequent Houses. He urged the court to avoid interpretations that could destabilise governance.

Former Chief Justice Maraga, however, maintained that Parliament had brought the situation upon itself. Through his lawyer Ochieng Oduol, he argued that the two-thirds gender rule has been firmly embedded in the Constitution since 2010, and Parliament has repeatedly ignored its obligations despite ample opportunity to comply. He added that Speakers and MPs failed to meaningfully respond to earlier petitions, making the advisory a legitimate exercise of constitutional mandate.

The Law Society of Kenya supported this view, arguing that Parliament exists in perpetuity and that failure by one House cannot be insulated from successor Houses. It maintained that Parliament may be dissolved as many times as necessary until it fulfils its constitutional duty.

Former Senator Margaret Toili, one of the petitioners, recounted how attempts to advance the legislation were repeatedly frustrated by lack of quorum.

The roots of the crisis stretch back more than a decade. Following the promulgation of the 2010 Constitution, the Supreme Court issued an advisory opinion in 2012 setting August 27, 2015, as the deadline for implementing the gender rule.

Parliament hurriedly extended the timeline by one year to 2016 but still failed to comply. In 2015, Justice Mumbi Ngugi ordered Parliament to pass the Bill within 40 days following a petition by the Centre for Rights Education and Awareness (CREAW). After the 2017 elections, CREAW returned to court before Justice John Mativo, who gave Parliament 60 days and expressly allowed any Kenyan to petition the Chief Justice for dissolution in the event of non-compliance.

Speakers at the time argued that they could not be held responsible as they neither introduce nor vote on Bills. Despite appeals, key elements of Mativo’s orders were upheld, setting the stage for Maraga’s eventual advisory.

Yesterday’s ruling offers Parliament temporary relief on procedural grounds, but the underlying constitutional obligation remains unresolved. The court was clear that the duty to implement the two-thirds gender rule persists across electoral cycles.