Former Chief Justice David Maraga/FILE
In its judgment on Friday, the bench held that the advisory was unconstitutional and issued prematurely, noting that it did not comply with the procedural requirements set out in the Constitution before such a recommendation could be transmitted to relevant state organs.
The court found that key constitutional steps, including the transmission of court orders to both Parliament and the Attorney General as required under Article 261(6)(b), had not been fully adhered to at the time the advisory was issued.
“The Chief Justice advisory dated September 21, 2020, is hereby declared unconstitutional, null, and void. The advisory is removed for purposes of quashing and is hereby quashed,” the bench ruled.
The judges further issued an order prohibiting the President from enforcing the advisory.
The advisory had been issued in the context of prolonged non-compliance with constitutional provisions requiring progressive realisation of gender equality in elective and appointive bodies.
Petitioners in the case had argued that Parliament’s continued failure to enact enabling legislation triggered constitutional consequences, including dissolution of the House.
They contended that the Chief Justice acted within constitutional bounds in issuing the advisory opinion and that the President was obligated to act upon it within a reasonable period.
Some petitioners further argued that the alleged failure to comply with constitutional timelines rendered Parliament incapable of participating in proceedings concerning its own alleged breaches.
However, the bench rejected the interpretation that the advisory amounted to a binding directive capable of compelling dissolution of Parliament or automatic action by the Head of State.
The court held that while the Constitution provides accountability mechanisms for legislative failure, such mechanisms must be exercised strictly within established legal procedures and cannot operate automatically without judicial oversight.
At the heart of the dispute was Parliament’s prolonged alleged failure to enact legislation to give effect to Articles 7, 8, and 81(b) of the Constitution, which entrench the two-thirds gender principle.
The court acknowledged that Parliament has a continuing constitutional obligation to enact laws necessary for the Constitution's implementation.
“The Constitution does not permit institutional failure to defeat its own enforcement mechanisms,” the judges observed, emphasising that constitutional obligations remain binding regardless of changes in parliamentary terms or membership.
The bench, however, clarified that institutional responsibility rests with Parliament as a collective body and not individual Members of Parliament, noting that constitutional duties persist across successive Parliaments.
In its final orders, the court concluded that the advisory could not be elevated into a self-executing instrument capable of triggering dissolution of Parliament.
It therefore quashed the advisory in its entirety and declared it of no legal effect.
The ruling effectively settles a long-running constitutional question over the legal status of the Chief Justice’s advisory powers and the procedural thresholds required before such recommendations can be acted upon by the Executive.
