Parliament Faces Dissolution Over Gender Rule Non-Compliance

High Court forwards case to Chief Justice for three-judge bench assignment

NAIROBI – A constitutional petition seeking the dissolution of Kenya’s Parliament over its failure to implement the mandatory two-thirds gender rule has been forwarded to Chief Justice Martha Koome for assignment to a three-judge bench.

High Court Judge Lawrence Mugambi made the decision Thursday after determining that the petition raises similar constitutional issues to nine other cases filed in 2020 on the same matter.

The petition, filed by activists Margaret Toili, Eddah Marete, and Agnes Ndonji in 2022, targets Kenya’s current 13th bicameral Parliament, arguing that former Chief Justice David Maraga’s 2020 advisory for parliamentary dissolution remains valid beyond the previous legislative term.

“The dominant issue in all these petitions is Parliament’s failure to implement the two-thirds gender rule despite persistent constitutional calls to do so,” Justice Mugambi stated in his ruling.

The case specifically challenges the constitutionality of the current Parliament following the August 2022 general elections, with petitioners arguing that the gender parity requirements outlined in Articles 27(3), 81(b), and 100 of the Constitution remain unmet.

The petitioners initially opposed consolidating their case with the nine earlier petitions, arguing it would cause unnecessary delays in addressing the gender rule implementation.

“Dwelling on past petitions has led to the dragging of the implementation of the two-thirds gender rule, and this must stop,” argued Toili, describing the consolidation as “misguided and legally untenable.”

However, Justice Mugambi ruled that all petitions raise common questions of law stemming from the same constitutional transaction, warranting consolidation.

The judge emphasized that the gender parity issue represents “an enduring legal question” that will continue to recur with each new Parliament unless definitively resolved.

The petition builds on former Chief Justice David Maraga’s September 2020 advisory to then-President Uhuru Kenyatta, recommending parliamentary dissolution due to lawmakers’ failure to enact gender rule legislation.

The activists argue that Maraga’s advisory was not limited to the 12th Parliament and should apply to subsequent legislative bodies that fail to meet constitutional gender requirements.

Beyond parliamentary dissolution, the petitioners are requesting court orders directing the Registrar of Political Parties to ensure all political parties adhere to the two-thirds gender rule when nominating candidates for elective positions.

The case now awaits assignment to a three-judge bench that will handle the consolidated petition alongside the nine previously filed cases.

The constitutional gender rule requires that no more than two-thirds of members in elective or appointive bodies should be of the same gender, a provision that has remained unimplemented since the 2010 Constitution’s adoption.