The Nature, The Extent, The Effect and the Juridical Character (Precedent Value) of Advisory Opinions of the Supreme Court of Kenya

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.

Johnny Walker & Weed

When you were over there, you were ordering approximately four times the amount of food that you were actually capable of eating, and alternatively, making yourself food that you forgot about in the microwave oven until it was a blackened husk.

You also were saying “I know that dance!” about dances that you absolutely do not know about, and then proceeding to attempt the dance from vague memory. And insisted that you know how to dance!

When you were over there, you were telling people you love them, particularly when you do not love them, at all!

You were feeling a new-found sense of financial freedom, and exerting that freedom by spending what was left of your rent and transportation money on drinks for the individuals you met waiting for the bartender at Shebeen!

You sat on the toilet to pee and momentarily falling asleep!

When you were over there, you were getting on WhatsApp and striking up an incredibly emotional conversation with whoever happened to be online at that time. (If that person did not respond, you tried another one, and then another.) You suddenly got incredibly emotional about your Ex girly-girly attempting to make up with her for years’ worth of emotional damage in a five-minute span, usually over a shot. And sought out a slightly less intoxicated, or stoked person, to be your sounding board for all of your terrible ideas, and to calm you down from whatever drunken anxieties you were having.

When you were over there, you were fixated on an idea of “Let’s go to Kiki’s!” and you did not relent until it happened,to the detriment of your dignity, and friendship.

(I was recently out partying with friends, and two of us became overwhelmed with a sudden desire for chipos – the real ones – azin the fried ones.. Chips! Viazi. When the waiter informed us that the kitchen was closed, we began negotiating with him and eventually decided that we were ready to pool our funds and offer him 4K for a basket of fries.

Thankfully for us, he had the good sense to decline.

Being overwhelmed with the desire to draw penises.

Kissing people that you would never in your entire life want to kiss sober, including people that you will have to SEE IN THE UNFORGIVING LIGHT OF DAY.

Randomly switching drinks at the end of the night to something really harsh that you would absolutely never drink normally.

Smoking???

Calling people at 2 in the morning who are clearly trying to sleep like a normal adult, and when they answer the phone all groggy and upset, being like,

“Heyyyyy… I just wanted to talk. How are you? Why are you being HOOOOSTILE???”

Cut it out!

Thinking like a Wakili

Thinking like a lawyer demands thinking within the confines of inductive and deductive forms of reasoning.

When we were in Law School and especially during clinical experience, (Manda, Rayner & Chrysostom), we entered a world of rigorous dialogue in which abstractions are formulated and then described — usually leading to the discovery of a general principle or rule, which is then distinguished from another general rule.

We learned how to narrow and intensify our focus. …and in the Pavlovian spirit, we were rewarded when we performed these tasks well, and ridiculed when we performed them poorly!

The process taught us how to think defensively: We learned how to protect our clients (and ourselves) and why we needed to proceed slowly, find the traps, measure and calculate the risk, and above all, never, ever let them see you make the effort!

You soon discover (because we are still discovering) that there is more work than we can realistically accomplish — unless, of course, we spend almost every waking hour in pursuit of legal knowledge.

Well… the competitive nature of the learning process drove us even harder, reinforcing some views and perceptions while diminishing others — Like justice for example – there is no such thing as “JUSTICE”, or “JUSTICE FOR ALL”!

But there is something called “INTEREST”!

“WHAT IS THE INTEREST?”

…all of which would eventually alter the very nature of how we think.

The goal, of course, was for us to become:

rational,

logical,

categorical,

linear,

thinkers.

— trained to separate what is reasonable from what is not, and what is true from what is false!

Having learned to think in a new way, we have less tolerance for ambiguity. A new mental structure forms — a new set of lenses through which to view the structure of human affairs.

At least on my part, it was everything I had hoped for — a quantum leap forward; a kind of intellectual transcendence.

And it is demonstrated in outside there you know… Dee calls it, “High Risk High Spenders – “HRHS“!

You see, in Premium Banking, there are CEO’s and Directors, mostly called VIP’s but in the background, “High Risk High Spenders”. This is so because they have no job security, mostly because how much they earn doesn’t depend on  the way their mind works but on their ability to organise and manage people and things.

They bring money to the bank, both personal, and then the way Colly-More would direct all of Saffy’s business money transactions toward Bar-Clays. Thats big money! But once he is fired by the Board, the new guy can change Saffy’s accounts, and take the money elsewhere, say Chase, – unless Bar-Clays sends a bevy of sumptuous looking hotties in short skirts to the new CEO’s office, perhaps a blowjob each and deal is done!

Engineers and Doctors on another hand; their business is not mostly predetermined by their brains but to a levered extent, the equipment in their offices and clinics. Cuz they have to measure, and analyse, and diagnose and do all sorts of stuff in order to come up with a synthesis of what the problem could be.

What they do is 1+1=2.

A wakili, on the other, doesn’t necessarily need an office, or equipment, in order to work. Dont get me wrong, he might need it to work effectively, but an office and equipment for them is secondary.

A wakili relies entirely on his mind. How it works!

He can walk the street for all the bank cares, but as long as he is SMART upstairs, and he has a reputation of smart thinking, but he keeps his office in the boot of his car a briefcase – the bank will tell the bystander,

“FUCK YOU! We are giving him the loan! Because we know he WILL PAY”

Bankers call them Low Risk High Spenders – “LRHS”.

As such, I have every reason to believe that I am absolutely, paid to think!

…when your little boy starts growing up into a MAN.

I cannot teach you everything son, but i can tell you a few things…

I never really liked mathematics. It was a shit. And something interesting is that the chics who enjoyed it later on came to be the supuest chics I had ever met!

Nevertheless so, I always questioned my Math teacher on matters to do with logic. I also question these supu chics  because you know what? Your daddy is a lawyer – and lawyers know EVERYTHING!

EXCEPT MATHEMATICS!

Every time we started a new topic, BODMAS, DIFFERENTIATION, SIGNS <–what the hell are these??) what not… I always asked her what relevance these things would have in my future?

She never really had an answer.. But for some reason ir another, I always figured that with every question I asked, she became wetter and wetter!

I would then go back to reading my CRE or Kiswahili.

I still cannot imagine that we were taught and we had to read Kiswahili?

Bullshit huh?

She never thought I would pass my High School exams. But I did. She was just jealous and she wanted to have relations – I was just too young to understand what women wanted..

But then, I failed miserably in mathematics! As I did with chics back then..

So what do we learn from all this?

Its a world full of immediate impressions, everything’s in the here and now. But you have to move past that, and be a man of your own.

Take it from a chap far advanced in years.

To always be realistic about who you are; to always know what the deal is, but to never really talk about it;

Not to curse for controversies sake; not to be Jealous.

If the prettiest girl in this world tells you she is yours, she is not bluffing!

To always make your own way in the world. To always strive to not necessarily be rich, but to be successful!

…chics know there is no point of going out with a loser.

To know that as long as you dream about the future, it will always take care of itself.

Some people make winning very easy. “I got out of bed this morning and felt like kicking this case to the curb Fred Ngatia style – your daddy one day said, he will never want to lose a case. So he has lost just a handful.

You get to be good at something by doing it over and over again, by doing it the wrong way a couple of trial times, and then by believing that you will do something epic when you actually do it.

Excellence is not an accident, its always a result of high intention, sincere effort and intelligent execution. It represents a wise choice out of many alternatives. Choice, not chance – determines your destiny.

That’s the reason why God gives us things called “Moments”. Moments which you don’t lose – opportunities which you see, you take, and then you run away with.

Ask me and I will show you Kamlesh Pattni’s moment, Jirongo, Ahmednasir, your daddy and all other billionaires out there, their moments!

And then, we buy things.

Then we buy things to help take care of the things we bought.

Thereafter, we buy things to help keep the things we bought in.

Money, is not a problem. Money comes and goes. Money makes a difference, but money is not the most important thing in the world.Money us just that, money. Money may not necessarily be power. Its a means to an end. Like flowers – they never really get you into a girls bed.

You will always get money – so never hold on to it as if it was some sort of god. Give it back, give it out, and share it with the people you love, and your friends and acquaintances.

It will come back.

And don’t let it fuckin control you!
Always be the Gentleman — that semi-imaginary guy in our heads who actually wanted to sleep with wore fedoras and treated ladies like ladies. It might be over, but there’s no reason it can’t come back. Its like wearing a black suit and a white shirt! Drinking scotch at Caribana and, clean shaven with a goatee, wearing a firing shirt and jeans, and nice shoes.

It never goes away.

Always have a signature drink that is simple and effortless to have or to order. Don’t be complicated.

Never engage in negative social media activities l like Twitter fights or passive-aggressive Facebook statuses. Bullshit.

Hold doors open for everyone, because that’s just a nice thing that you do.

Text back promptly, even if it’s to let someone down gently. The worst thing you can possibly do to someone is leave them hanging so they can torture themselves with worst case scenarios!

Own and be able to sufficiently rock at least one suit. If you become a lawyer like me, at least 5. Suits –> the greatest untapped resource that a man has access to. Can take even the most slovenly 4Chan into presentability.

You owe it to yourself to know your way around a suit.

Know how to make a good handshake.

Never attempt to explain, under any circumstances, why a cat call should be considered a compliment. And never look at another woman when you are in the company of any woman. Unless you really really have to.

…and you never really really have to do anything. Except for your mother, your sister and the girl of your dreams. Its never that serious.

Be simple, like me. But also acknowledge that a pair of nice shoes or a classy watch, or phone can Upgrade U almost immediately.

..just don’t over do it. Your not a rapper!

I think its not right to refer to things as “gay” that aren’t homosexual human beings. People who call things “gay” as a pejorative are truly the raisins in the trail mix of life.

…and do your best not to put others down in order to elevate yourself. Its a sin, by the way.

Call your mum every time you can, and take her to dated the same way you can take toys chic your dating. Don’t waste time with women who don’t really matter.

Know how to cook at least a few good meals, because a) there is nothing worse than guys who assume it’s up to the woman to do all the cooking, b) I have been authoritatively told that there is nothing sexier than a dude who can cook, and c) everyone deserves to feed themselves well. And you cant complain of bad food if you don’t know how to cook for shit.

Know how to make good eye contact.

No politics. No football Man U Arsenal. Support them, but with a difference.

Erase the word “slut” from your vocabulary.

Treat every woman with the same amount of respect and humanity that you would your mother, sister, or daughter

— and think about why there might have been conditions on how you treated them in the first place.

RSVP.

SAVE. But not because you’re saving for anything in particular.

Always understand that as long as you’re working hard and trying your best, you deserve to be honest!

Do not sleep with anyone who wants a relationship from you that you are not prepared to give. I think that using their affection to get something from them physically is easy, but it makes you a bad person.

Learn how to dance, at least a bit.

Never underestimate the great value of unexpected flowers and chocolate on a day that is otherwise nothing special … especially in long-term relationships!

…guys have just as much a right to look and feel good about themselves as anyone else. Just don’t be a dick about other people who like to do it, too.

Be compassionate and empathetic. Know that you are allowed to experience the full range of human emotion.

Where your great grandfather might have prided himself on keeping all of his feelings in check for fear of seeming ‘feminine,’ know that the best thing about him is his ability to be kind and empathetic!

Everything else — yes, even the suit — is just icing on the cake

Lastly, since its just me, your mum and your sister, always take care of your mum and sister, and know that you are responsible for them and their wellbeing.

..and never forget the far that God has brought you! Don’t.

Cheers!

An Open Letter to Kenyans: 12 Suggestions on Shit We Should Do or Not Do in 2014

Walubengo's Den

 

1. Phone etiquette. This means phone manners. If you call someone and they don’t pick up, don’t call again. They will call you back. If not, get the message. If you feel that they might have not seen your call, text them. If they don’t reply, please don’t text again asking why they haven’t replied. That is a cycle which leads to insanity and psychotic behaviour. Don’t use your phone while:

a. Driving (Can’t believe I have to say this)

b. On a date

c. In a meeting

d. In an interview

e. When you’ve just been introduced to some people who can take your life, career or business further.

2. Courtesy. Simple good manners will go a long way. Fucking saying please and thank you show you are civilised. Fucking not interrupting people when they are speaking shows that you are listening, not just waiting to talk. Giving…

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