Introduction
The two-thirds gender principle remains one of the most contested constitutional issues in Kenya’s constitutional democracy. Enshrined under the Constitution of Kenya, 2010, the principle seeks to ensure that no more than two-thirds of members in elective and appointive public bodies are of the same gender. Despite clear constitutional provisions, Parliament has repeatedly failed to enact legislation implementing the rule, particularly in relation to the composition of the National Assembly and the Senate. This constitutional deadlock culminated in a historic advisory issued by former Chief Justice David Maraga to former President Uhuru Kenyatta in 2020, recommending the dissolution of Parliament for failure to implement the constitutional requirement. Recently, however, the courts revisited the legality and constitutional effect of that advice, issuing a ruling that has reignited debate on constitutional enforcement, judicial authority, and gender equality.
Background to the Maraga Advisory
The constitutional foundation of the two-thirds gender rule is found in Articles 27(8), 81(b), and 100 of the Constitution of Kenya, 2010. Article 27(8) obligates the State to take legislative and other measures to ensure that not more than two-thirds of members of elective or appointive bodies are of the same gender. Article 81(b) further establishes gender equity as a principle governing Kenya’s electoral system.
Despite these constitutional requirements, Parliament repeatedly failed to enact implementing legislation. Following numerous court orders and deadlines directing Parliament to comply, litigants sought judicial intervention. In 2020, the High Court declared Parliament unconstitutional for failing to implement the gender rule and directed the Chief Justice to advise the President to dissolve Parliament under Article 261(7) of the Constitution.
In compliance with this directive, former Chief Justice David Maraga formally advised former President Uhuru Kenyatta to dissolve Parliament. Maraga argued that constitutional supremacy demanded accountability and that continued parliamentary failure to implement the constitutional command amounted to a violation warranting constitutional sanctions. The advisory represented an unprecedented moment in Kenya’s constitutional history, marking the first time a Chief Justice recommended dissolution of Parliament.
However, President Kenyatta did not act on the recommendation, creating uncertainty regarding the binding nature of the Chief Justice’s advice and the constitutional consequences of non-compliance.
The Current Court Ruling
In a recent ruling, a five-judge bench of the High Court revisited the legality and constitutional implications of the Maraga advisory. The court reportedly quashed the former Chief Justice’s recommendation to dissolve Parliament, holding that the advisory lacked binding force and could not constitutionally compel presidential action.
The judges reasoned that while Article 261 provides a mechanism for constitutional enforcement where Parliament fails to enact legislation, the power of dissolution must be interpreted within the broader framework of constitutional governance, separation of powers, and democratic representation. The court reportedly held that the advisory itself did not automatically trigger dissolution and that constitutional interpretation must avoid destabilizing democratic institutions absent clear legal certainty.
The ruling effectively weakens the constitutional effect of the 2020 recommendation and raises important questions about whether judicial remedies can sufficiently compel political institutions to comply with constitutional obligations.
Constitutional and Legal Implications
The ruling has generated competing constitutional interpretations. Supporters argue that the judgment protects constitutional balance and prevents judicial overreach into political matters. According to this view, dissolution of Parliament is an extraordinary measure that should be cautiously approached due to its significant democratic implications.
Critics, however, contend that the ruling undermines constitutional supremacy and weakens enforcement of gender equality provisions. They argue that if constitutional commands can be ignored without consequence, then the transformative ambitions of the 2010 Constitution risk becoming merely aspirational. The inability to enforce the two-thirds gender rule, despite repeated judicial interventions, demonstrates institutional resistance to constitutional reform.
The judgment also raises broader concerns regarding the effectiveness of Article 261 as an enforcement mechanism. If Parliament can repeatedly fail to implement constitutional requirements without facing meaningful sanctions, questions emerge regarding the practical authority of courts in ensuring constitutional compliance.
The Future of the Two-Thirds Gender Rule
The latest ruling does not eliminate the constitutional obligation to implement the two-thirds gender principle. Parliament remains constitutionally obligated to enact legislation that complies with Articles 27 and 81 of the Constitution. However, the ruling signals that future compliance may require stronger political commitment rather than reliance solely on judicial enforcement.
Women’s rights groups and constitutional scholars are likely to continue advocating for legislative reforms, public accountability, and strategic litigation aimed at achieving constitutional compliance. The issue remains central to Kenya’s democratic development and commitment to equality, inclusion, and constitutionalism.
Conclusion
The court’s recent ruling on former Chief Justice David Maraga’s advice to dissolve Parliament marks a significant constitutional moment in Kenya’s governance landscape. While the judgment may preserve institutional stability and clarify limits of judicial authority, it also exposes the ongoing difficulty of enforcing constitutional obligations against political institutions. Ultimately, the controversy surrounding the two-thirds gender rule reflects a broader constitutional question: whether Kenya’s Constitution is a binding instrument of governance or merely an aspirational framework dependent on political goodwill. Until Parliament fully implements the gender principle, the constitutional debate surrounding representation, equality, and accountability is likely to persist.
