By Sunday Memba
Julie Calidino Schmid in his manuscript, “Advisory Opinions on Human Rights: Moving beyond a Pyrrhic victory” defines the phrase advisory opinion as the authoritative interpretation or exposition of the legal or constitutional status quo in the absence of actual disputes. In “Re the Matter of the Interim Independent Electoral Commission”, (2011) eKLR), the Supreme Court indicated that, the purpose of the advisory procedure is “to clarify a doubt” and to enable the organ of the state to “act in accordance with the law,” and not necessarily to resolve an active dispute. This type of jurisdiction intends to permit the government organs and related entities to obtain guidance and clarification on points of law in the absence of a live case or controversy, rather than to redress past harm.
From the onset, it is paramount to distinguish advisory opinions from abstract reviews and “advice” from courts. Advisory opinions are slightly different from abstract reviews.
Abstract reviews, majorly found in civil law countries, are strict in nature and tend only to determine the legality of laws. However, advisory opinions are of a wider girth and may even determine “practices, actions and procedures” relating to matters of law. Advisory jurisdiction should also be distinguished from cases where courts, while determining contentious cases, signpost in passing constitutionally acceptable or unacceptable courses of action to the political organs, despite the fact that such determination is not obligatory or directly relevant to the resolution of pending legal disputes [“Neal Kumar Katyal, Judges as Advice givers, 50 STAN. L. REV. 1709, 1709 (1998)”].
Advisory Jurisdiction dates back to English Common Law. The King would seek advice from the courts by way of advisory opinions on any matter. The Judicial Committee of the Privy Council would issue Advisory Opinions reluctantly [“Margaret M. Bledsoe, Comment, The Advisory Opinion in North Carolina: 1947 to 1991, 70 N.C. L. REV. 1853, 1855–57 (1992)”]. The Privy Council upheld that courts could give advisory opinions if a statute explicitly granted them such power (ibid). Most countries with post-modern models constitutions in the globe have recognised, expressly or implicitly, the need for this special court power.
Kenya is the only Anglophone country that explicitly recognises advisory jurisdiction. This peculiar feature makes it a herald for the growing jurisprudence in Africa about this subject. The Supreme Court has not disappointed as it has elucidated on the concept of advisory jurisdiction. This is through a number of advisory opinion applications it has received since its inception. The court in “The Matter of the Interim Independent Electoral Commission” elucidated on the nature, design and purpose of advisory opinions.
Colonial constitutions highly favoured the “masters” and warded of imperial rivals (Yash Ghai, A Journey around Constitutions: Reflections on Contemporary Constitutions, 122 S. AFR. L.J. 804, 808 (2005)). After a long constitutional reform journey and a series of postponed constitutional promises, the citizens of Kenya embraced the Constitution of Kenya 2010. This constitutional introduced far-reaching changes in the judicial arm of government which substantially changed its operation. Pursuant to Article 163 of the Constitution, the Supreme Court is established. It enjoys the status of the highest court in the land and its decisions are binding on all organs except itself. Previously in the 1963 model constitution the Court of Appeal had this status.
Jurisdiction conferred upon the Supreme Court is of four types. Article 163(3) confers original and appellate jurisdiction to the Supreme Court. Original Jurisdiction is limited to matters pertaining to election to the office of the president while the appellate jurisdiction is limited matters involving the interpretation and application of the Constitution and matters of general public interest. The Supreme Court Act, 2011(Act No. 7 of 2011), under section 14 confers “special jurisdiction” upon the Supreme Court. Of utmost concern is article 163(6) which states thus: “The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.”
As per the constitutional provisions in article 163, only the Supreme Court can offer advisory opinions. Thus any “advice” that a court other than the Supreme Court renders is not considered an advisory opinion. It is of fact that courts may advise parties to a suit or the general citizenry on a particular point of law. This may not be related whatsoever on the controversy before the court. The High Court in Kenya has jurisdiction to hear any question relating to the interpretation of the constitution and thus issues “advice” in relation to laws. Advisory jurisdiction can also be defined as relating to ‘’the determination of the constitutional implications of laws, bills, and other proposed measures’’ (Anthony Aust, Advisory Opinions, 1 J. INT’L DISP. SETTLEMENT 123, 123–24 (2010) (on the advisory jurisdiction of the International Court of Justice). Vaguely speaking, this can be construed as denoting that all superior courts in Kenya can offer advisory opinions.
However, strictly speaking, only the SC can render advisory jurisdiction as per the dictates of the grundnorm.
The Supreme Court considered that in the context of article 163(6), an advisory opinion was legal advice rendered by the court to public bodies. It indicated that such an opinion does not flow from any contest of right or claims disposed of by regular means and it does not fall in the class of judgment, or ruling, or order, or decree. In The Matter of the Interim Independent Electoral Commission, (2011) the Supreme Court clarified that this kind of jurisdiction is purely discretionary. The constitution uses the word “may” and hence the Supreme Court can either accept or refuse to issue an advisory opinion on the matter placed before it. In the US system, from which Kenya’s constitution heavily borrows, the Supreme Court has always refuted the issuance of advisory opinions. Restraint in the US is exercised because of the doctrine of the separation of powers and the strict definition of judicial power (Advisory Opinions and the Influence of the Supreme Court over American Policy making). In doing so, the US Supreme court asserted its role as being judicial and not advisory as well as protecting the constitutional doctrines of the separation of powers and judicial independence (Re Pacific R. Commission, 32 Fed. 241, 255).
Furthermore, the Supreme Court has clarified to whom an advisory opinion may be given. Article 163(6) of the Constitution lists only three entities that can seek and be given advisory opinions: the national government, county government and state organs. Pursuant to article 1(3) of the Constitution, sovereign power is delegated to State Organs. Article 260 of the constitution defines a state organ as a commission, office, agency or other body established under the constitution. Moreover, the State organs listed under article 1(3) of the constitution are, parliament and legislative assemblies in the county governments, national executives and the executive structures in the county governments and the Judiciary, as well as independent tribunals. Pursuant to Article 1(3) of the Constitution, the national executives and county executives are also state organs. Could this mean that article 163(6) of the Constitution is superfluous?
This raises questions yet to be solved. For instance, can the High Court, being part of the Judiciary, seek and advisory opinion of the Supreme Court? Another contentious issue is whether the advisory opinion is the last resort considering that the attorney-general is the adviser of the government.
In the matter of the IIEC, Learned Counsel Pheroze Nowrojee argued the question whether the IIEC was to seek the advice of the attorney-general or the State Law Office before laying the matter to the Supreme Court. He considered article 248(2) of the Constitution, which stipulates that the commissions and the holders of the offices are only to the constitution and are or to be controlled by any person or authority because they are to function independently and uphold constitutionalism. It was also argued by Nowrojee that independent offices should promote constitutionalism, and there was no law proviso in law mandating State Organs to seek advice from the State Law Office.
However, the Supreme Court did not accept such a construction and defining the stating that being independent did not provide that an arm of government or state organ should act in isolation. Its reasoning was that an entity invoking the advisory jurisdiction of the Supreme Court must first attempt to seek the advice of the attorney-general (Sec 40(4) The Supreme Court Act, (2011).
In their wisdom, the requirement that the views of the attorney-general should be sought is compatible with the understanding that advisory opinions must only be granted as a last resort, and in situations of urgency. The requirement also ensures that government organs do not bypass the office of the attorney-general whose principal role is to provide neutral legal advice by virtue of Article (156) (4) of the Constitution. Moreover, the court considered that failure to seek the advice of the attorney-general potentially undermines the urgency of the issues. In the advisory opinion concerning the date of elections, the Supreme Court observed that even the Independent Electoral Commission, which is required to be independent of political organs, should seek the advice of the attorney-general.
The Supreme Court, in the IIEC matter, indicated that any person or institution can appear as an interested party or as amicus curiae in an advisory opinion matter. Moreover, the court would be hesitant to exercise its discretion where a matter is subject to proceedings in a lower court unless the matter is of great public interest. In the Matter of the Interim Independent Electoral Commission, the Supreme Court declined to grant an advisory opinion for two whys and wherefores. First, the issue was the subject of a contentious case undecided before the High Court. The Court was justifiably sluggish to provide advisory opinions in relation to issues pending before lower courts. Matters amenable to ordinary litigation should normally follow the conventional route in adversarial cases. Second, the Court decided that appeals for a “correct” interpretation of the law will not be admitted for advisory opinion.
The choice to issue an advisory opinion may only be given on a case-by-case basis, taking into account the public significance and earnestness of the issue. The determination of the existence of public interest and urgency defies any universal rule and may only be made bearing in mind the peculiar circumstances of distinct cases. Additionally, priority should usually be given to the tangible resolution of constitutional issues. However, the advisory jurisdiction may be raised even in relation to cases pending before other superior or lower courts if it can be demonstrated that the issue is of “great public importance” requiring “urgent resolution” and that the matter in question “would not be amenable to expeditious resolution through adversarial Court process’’.
In most jurisdictions, advisory opinions do not have a binding nature. One of the points persistently stressed in discussions of the advisory opinion is that the opinion is by impartialities, not by courts and hence are not precedents. However, the Kenyan Supreme Court holds that its decisions are binding by virtue of article 163(7) of the Constitution, which holds that all courts other than the Supreme Court are bound by its decisions. The Supreme Court indicated that the binding nature does not only extend to the courts but to all other government arms and the people of Kenya.^