The former Chief Justice advisory ruling onMARAGA'S ADVISORY SCRAP OFF
the two third gender in parliament was Stripped off and rendered as invalid by the Kenyan high court June 2026.1. Maraga’s Advisory and its Nullification
- Advisory Date: September 21, 2020
- Nullification Date: June 5, 2026
No, the 12th Parliament was never dissolved. Former President Uhuru Kenyatta did not act on Maraga’s advisory, and subsequently, multiple petitioners moved to court to challenge it.
Maraga issued the advisory because the 12th Parliament persistently failed to enact legislation to implement the two-thirds gender principle as directed by the High Court in 2017. The core factor mandating the advisory under Article 261(7) was Parliament's continued, deliberate failure to pass the requisite legislation within the specified timeframe.
- Relevant Date: March 29, 2017 (High Court order to Parliament)
- Relevant Date: October 12, 2017 (Expiry of the 60-day timeline)
- Case Filed By: Civil society organizations led by the Katiba Institute.
- Filing Dates: Consolidated petitions were filed in 2024 following the reconstitution of the Cabinet.
- Reasons: The court declared the Cabinet unconstitutional because it failed to comply with the two-thirds gender rule under Article 27(8), as more than two-thirds of its members were of the same gender.
- Ruling Date: June 30, 2026 (Justice Eric Ogola and Justice Anthony Githinji).
If the President fails to reconstitute the Cabinet within the mandated 120 days, it constitutes a violation of the Constitution. Petitioners can return to court to seek orders to invalidate Cabinet decisions, declare the continued holding of office by non-compliant members illegal, or initiate contempt of court proceedings.
The two-thirds gender rule—enshrined in Articles 27(8) and 81(b) of the Constitution of Kenya 2010—remains one of the most intensely debated and legally volatile issues in Kenyan politics. The core of the rule dictates that no more than two-thirds of the members of elective or appointive public bodies shall be of the same gender.
The conversation around this rule continues to sharpen, highlighted by a landmark High Court ruling ordering the reconstitution of the Cabinet for failing to meet this threshold. Addressing your specific concerns about competition, money, timelines, and nepotism requires unpacking both sides of this complex constitutional debate.
#6. The Economic Gap: Financial Barriers in Politics
Your question asks where men get money that women cannot access. In Kenya's political landscape, the disparity is rarely about a literal block on women earning money, but rather a reflection of historical and structural differences in wealth accumulation:
* Land and Asset Ownership: Historically, customary laws across many Kenyan communities restricted women from inheriting ancestral land or property. Because land is the primary form of collateral used to secure large bank loans in Kenya, men have historically had a structural advantage in accessing capital.
* Political Financing Networks: Kenyan politics is notoriously expensive, requiring massive capital for campaigns, logistics, and mobilization. Established financial networks, corporate backers, and political patronage systems have historically been male-dominated, making it significantly harder for women to crowdsource or secure early-stage political backing.
#7."Favoured to be Picked" vs. Structural Affirmative Action
Many critics share your view, arguing that nominations subvert pure democracy and bypass the voter's will. However, proponents argue that the constitution does not intend to bypass competition, but rather correct an uneven playing field:
* Leveling the Field: Affirmative action views the gender rule not as an unearned "favour," but as a temporary remedy for decades of systemic exclusion. The argument is that true competition can only happen when historical barriers—such as political violence targeted at women, cultural biases, and financial exclusion—are actively dismantled.
* The "Top-Up" Mechanism: In elective bodies like County Assemblies, women are not simply "picked" out of nowhere. Under proposed frameworks like the 2026 "Top-Up" Bill, political parties must field competitive lists based on the proportional votes they win during the general election. Women must still fight for popularity within their parties and constituencies.
#8. The Missing "Sunset Clause" and Risk of Over-Domination
You correctly pointed out that the 2010 Constitution does not specify an end date for this standoff, nor does it address what happens if women end up outcompeting men.
* The Lack of a Sunset Clause: In the original 2010 text, there is no explicit expiration date (sunset clause) for the rule. However, the debate has evolved. Recent legislative proposals, such as the Constitution of Kenya (Amendment) Bill, have actively introduced discussions on a "sunset clause" to limit how long these special nomination mechanisms will run before society transitions back to pure competitive voting.
* Could Women Dominate?: The rule is strictly gender-neutral. It states that neither gender can occupy more than two-thirds of the seats. If women sweep the elections in the future and take 75% of parliament, the law would trigger the exact same "top-up" nominations to secure seats for men to protect them from underrepresentation.
#9. Loopholes for Tribalism, Favoritism, and Nepotism
Your concern regarding nominations being used for nepotism, tribalism, or cronyism is widely shared by legal scholars and citizens alike.
* The Reality of Party Playbooks: In past election cycles, political party leaders have occasionally abused nomination slots to reward political cronies, relatives, or factional loyalists rather than nominating marginalized or deserving women.
* Tightening the Laws: To curb this, civil society and legislative bodies are pushing for strict statutory criteria managed by the Independent Electoral and Boundaries Commission (IEBC). The goal is to force political parties to submit audited, transparent, and formula-based nomination lists before elections take place, minimizing the arbitrary "picking and choosing" by party elite after the votes are counted.
From a strict legal standpoint, the two-thirds gender rule is not viewed as legally biased, but rather as an affirmative action mechanism enshrined to correct historical marginalization and achieve inclusivity, as mandated by the Constitution of Kenya 2010. However, from a practical standpoint, achieving it purely through direct elective politics remains difficult because the electorate’s voting habits can undermine gender quotas.
Because female elected members account for less than two-thirds of the House and are not enough to reach the constitutional threshold or quorum on gender-related voting, the following actions are actively debated by legal scholars and policymakers:
- Enacting specific legislation: Passing the long-delayed "Two-Thirds Gender Bill" that outlines a concrete formula for nominating additional members after a general election to bridge the gap.
- Political party affirmative action: Forcing political parties to field more female candidates in their strongholds during primaries.
- Constitutional amendment: Amending Article 97 and 98 to create designated "Special Women's Seats" in both the National Assembly and the Senate, entirely removing the burden from the general electoral field.