High Court Nullifies Maraga’s Advisory to Dissolve Parliament

The High Court has declared former Chief Justice David Maraga’s 2020 advisory recommending the dissolution of Parliament unconstitutional, null and void.

In a judgment delivered on Friday, a five-judge bench ruled that the advisory was issued prematurely and did not comply with the constitutional procedures required before such a recommendation could be made. The court found that key steps, including the transmission of court orders to Parliament and the Attorney General under Article 261(6)(b), had not been completed before the advisory was sent to the President.

“The Chief Justice advisory dated September 21, 2020, is hereby declared unconstitutional, null, and void,” the judges said. The court also barred the President from acting on the advisory.

The advisory arose from Parliament’s continued failure to enact legislation implementing the constitutional requirement that no more than two-thirds of elective and appointive positions be occupied by one gender. Petitioners argued that this failure triggered constitutional consequences, including the dissolution of Parliament, and maintained that the Chief Justice had acted within his constitutional mandate.

They also argued that the President was required to act on the advisory within a reasonable period. The bench rejected that position, finding that the advisory could not be regarded as a binding directive.

The judges held that constitutional accountability mechanisms must be exercised in accordance with established legal procedures and cannot take effect automatically without judicial oversight. A central issue in the case was the responsibility for implementing the Constitution.

The court affirmed that Parliament, as an institution, has a continuing duty to enact legislation necessary for the implementation of constitutional provisions. The judges said this obligation extends across successive Parliaments and is not affected by changes in membership or electoral cycles.

While acknowledging Parliament’s failure to fulfil its constitutional obligations, the court concluded that Maraga’s advisory could not operate as a self-executing measure capable of dissolving the legislature. The ruling settles a long-standing legal dispute over the extent of the Chief Justice’s advisory powers and the procedural requirements that must be met before such recommendations can be considered by the Executive.

The judges said the decision reinforces the need for constitutional processes to be followed and confirms that institutional accountability must be pursued through lawful procedures.