My task here is to discuss whether an Advisory Opinion is simply that – advise which does not bind – or whether it is a decision within the meaning of Article 163 (7) and thus binding on Courts or Parties.
We start from the beginning.
Jurisdiction is derived from the Law. And what is the Law? Nyamo puts it in a very sexy way – the Law is the Constitution, Statute and what the Courts say the Law is – principles of Judicial Precedent.
Otherwise, a Court cannot arrogate to itself jurisdiction through judicial craft or interpretation.
It must however be understood properly, that as far much as Jurisdiction is derived solely from the Law (above) – for it to form the complete compound of JURISDICTION, like water (H2O), that Jurisdiction must crystallize in the following respect:-
There is a fundamental difference between the INTERPRETIVE and ADVISORY jurisdictions of the Supreme Court.
A justiciable question entailing constitutional interpretation belongs foremost, to the original interpretive jurisdiction of the High Court, and ought first to be litigated and resolved in the Superior Court below, and only then is it subject to the Appellate procedure – Court of Appeal and then, the Supreme Court (SC).
One must not therefore improperly seek constitutional interpretation by way of an Advisory Opinion since seeking interpretation cannot crystallize SC Advisory Jurisdiction.
An Advisory Opinion on the other hand is exclusive to the jurisdiction of the Supreme Court and for it to be proper; it must be framed as a specific question (or specific questions) seeking a plain opinion statement, in the form of an Advisory Opinion. This cannot be achieved if a matter is pending before a Superior Court below.
An Advisory Opinion, according to Blacks Law, is a non-binding statement by the Court. It does not flow from the contest of rights. It is not synonymous and as such, not clustered within the classes of judgments, ruling, orders, and decrees.
This is because, the Court exists to solve real problems and not disputes of mere academic importance. The Judges of our Supreme Court do not sit as umpires on controversies of the academy. Nor is it the duty of a Judge, when sitting judicially, to write a textbook or practice manual, or give advisory opinions. It is even not the function of the Court to give advisory opinions on questions raised in the abstract – there has to be a concrete set of facts which ought to be brought before the Court.
While the Judicial Committee of the Privy Council signaled a warning against the excessive use of Advisory Opinions, there are strong policy arguments against rendering such opinions where, for instance, ex parte interpretations of the Law are bound to be unsatisfactory and in-authoritative. The practice would at least be open to serious abuse.
In fact, the only useful result about Advisory Opinions is that it obtains a prompt decision upon questions which are in doubt, but nobody is man enough, or ready enough, to litigate them.
The Superior Courts of America, Australia and UK, while rendering Advisory opinions, do not in them embody a juridical character or precedent value. The Superior Courts of Canada, Papua New Guinea and India juridicate and bind their Advisory Opinions. The ICJ (International Court of Justice) and the EACJ (East African Court of Justice) Advisory Opinions are not binding, but are often adopted and followed unless they can be departed from.
All that notwithstanding, the Constitution of Kenya, under Article 163 (6), read together with Article 163 (8) and 163 (9), Section 13 of the Supreme Court Act and Rule 40 (4) of the Supreme Court Rules provides, expressly, for Advisory Opinions, at the request of three things: the National Government, a State Organ and a County Government.
However, before the Advisory jurisdiction of the Supreme Court crystallizes, the Court must be satisfied that one, the questions raised are not of a nature which the opinion of the Attorney General may be sought and two, that the Attorney General would conclusively answer such a question.
This means that even Advisory Opinions are subject to an Appellate procedure – that is, in house counsel, external counsel (legal practitioners and consultants), the Attorney General and then, the Supreme Court.
It is also important to note that when giving an Advisory Opinion, any of the foregoing can interpret the Constitution while rendering the said opinion. This is a creation of a parallel jurisdiction in interpretation of the Constitution.
JUDICIAL AUTHORITY is derived from the people and that authority must be reflected in the decisions made by Courts. For this reason, and for the fact that JUDICIAL AUTHORITY is vested in the people, and unless these provisions of the Constitution are repealed, the Supreme Court must exercise its Advisory role.
This causes for a new approach for the rationalization principle in constitutional interpretation.
As such, and as it was laid down in Dodhia v National & Grindlays Bank (1970) EA 195, all Courts, other than the Supreme Court are bound by the decisions of the Supreme Court.
The Supreme Court may depart from its decision if it appears right to do so.
The juridical character and precedent value thus come into play for the reason that, there has got to be certainty of law.
The legal reasoning embodied in Advisory Opinions reflect the Courts AUTHORITATIVE views on important issues of law; and in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases.
This wisdom indicates that once the Supreme Court properly addresses the questions at hand, it must be seized with the facts, must perceive the matter with a sense of appropriateness and must render an AUTHORITATIVE answer.
The answers given are not merely advisory.
The Supreme Courts Advisory Opinion cannot be equated in effect to, or be on the same plane with the opinions of law officers. The pleadings in fact involve robust intellectual rigour, reflected in a focussed written submissions and in depth content, rich with arguments advanced and supported by illuminating authorities and scholastic journals – all of which are just as powerful as if the matter was adversarial in nature.
Where a Government (National or County) or state organ seeks advice, it is to be supposed that that Government or State Organ must abide by that Opinion.
The opinion is sought to clarify doubt and enable it to act in accordance with the law. If an Applicant were not to be bound in this way, then it would be seeking an opinion merely in the hope that the Court would endorse its position and otherwise the Applicant would consider itself free to disregard the opinion. This is not constitutionally fair in the respect of Article 163 (6) and cannot be right!
While an Advisory Opinion may not be capable of enforcement in the same way as ordinary decisions of the Court, it must be TREATED AS AN AUTHORITATIVE STATEMENT OF THE LAW.
The opinion must guide the conduct of, not just the organs that sought it, but all governmental and public action thereafter. To hold otherwise would be to reduce Article 163 (6) of the Constitution to an “idle provision” of little juridical value.
A circumscribed mandate in the exercise of the Supreme Courts Advisory Jurisdiction must therefore be adopted, since the decision may significantly touch on legal, political, social and economic situations.
It would thus be inappropriate and unhelpful that the Supreme Courts Advisory Opinion should be sought as mere advice.
The binding nature of Advisory Opinions in Kenya is thus consistent with the values of the Constitution and particularly, the rule of law. It was held as such in Advisory Reference No 1 of 2011, Re Interim Independent Electoral Commission, and restated in Advisory Opinion No 1 of 2012, that an Advisory opinion is in the context of a decision of the Supreme Court within the terms of Article 163 (7) and is thus binding on those who bring the issue before the Court, and upon lower Courts, in the same way as other decisions.
This role however, should be exercised in such a manner that would uphold the JUDICIAL AUTHORITY of our Courts.
What am I saying?
What am saying is that it would be improper to answer legal questions extra judicially!
C.X.A.
THE BOOK OF CHRYSOSTOM 