By Shadrack Muyesu
Although Black’s Law Dictionary defines an advisory opinion as a non-binding statement by a court on its interpretation of the law on a matter submitted for the purpose, the international legal regime (on advisory opinions) is defined by differences in definition and procedure. Kenya is an example of this uniqueness. Indeed, considering the approach on jurisdiction, the binding nature of advisory opinions and locus standi, ours could be considered a mould of its own totally flying off the handle of a few widely accepted international guidelines. This article explores this uniqueness, however briefly.
Jurisdiction and locus standi
One key innovation of the Constitution of Kenya was the establishment of Supreme Court and, with it, the power to issue advisory opinions under Article 163 (6). The Supreme Court Act No. 7 of 2011 under Section 13, along with its subsidiary rules such as the Supreme Court Rules 2012, under Rule 41, and the Supreme Court of Kenya Practice Directions under Section 31, offers further guideline as to the nature and exercise of these powers. In principle, 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 governments. Reference may proceed ex patre or by an inter patres hearing between the applicants and the respondents as interested parties and/or amicus curiae.
Once a reference application is made and the Court has given the parties an opportunity to be heard, it may reject the reference in whole or in part if, according to the Supreme Court Rules 2012, Rule 41 (4)— (a) it is incompetent within the meaning of Article 163(6) of the Constitution; (b) it considers that the applicant does not have or does not represent those who have interest in the opinion; (c) the matter in respect of which the reference is made can, in the opinion of the Court, be resolved by the advice of the attorney-general, and such advice has not been sought; (d) it satisfied that the application is frivolous, vexatious or otherwise an abuse of the process of the Court; (e) the applicant has failed to comply with any rule, directions or order of the Court; or (f) the reference is materially incomplete or lacking in clarity and the applicant has failed to remedy the defects as directed by the Court under sub-rule (3).
Commendably, the Supreme Court moved swiftly to reconcile these laws and avert any crisis (of interpretation) that would have arisen forthwith. As to the definition of an advisory opinion, the court, in the landmark case of RE IIEC ( eKLR Sup. Ct. Const. Application No. 2) had this to say in paragraph 33,
“(An advisory opinion) means legal advice rendered by the Court to the public body or bodies seeking the same, by virtue of scope created by law. Since such an opinion does not flow from any contest of rights or claims disposed of by regular process, it does not fall in the class of ‘judgment, or ruling, or order, or decree’.”
With regard to jurisdiction, the Court affirmed the discretionary nature of its powers as contemplated by Article 163 (6). In the recent matter of the National Land Commission ( eKLR Sup. Ct. Const. Application No. 2 ) the court held,
“The Supreme Court of Kenya, in the exercise of the powers vested in it by the Constitution, has a solemn duty and a clear obligation to provide firm and recognizable reference-points that lower Courts and other institutions can rely on, when they are called upon to interpret the Constitution. Each matter that comes before the Court must be seized upon as an opportunity to provide high-yielding interpretive guidance on the Constitution; and this must be done in a manner that advances its purposes, gives effect to its intents, and illuminates its contents.”
The Matter of the Principle of Gender Representation in the National Assembly and the Senate ( eKLR Sup Ct. Const. Appl. No. 2) provided further highlight on the nature of matters on which an advisory opinion could be sought. Here, the court took the view that Advisory Opinions are an avenue for settling matters of great public importance, which may not be suitable for conventional mechanisms of justiciability. Such novel situations, the court held, have clear evidence under the new Constitution with devolution as the chief culprit.
As to what consists a matter concerning county government, the Supreme Court had this to say in Speaker of the Senate & another v Attorney-General & 4 others ( eKLR Sup.Ct. Const. Application No. 2 ),
“It emerges that a matter qualifies to be regarded as one of county government only where: that is the case in the terms of the Constitution; it is the case in the terms of statute law; it is the case in the perception of the Court, in view of the function involved or the relation created as between the national government and its processes, on the one hand, and the county governments and their operations, on the other. In the last instance, the Court will conscientiously consider the relationship between the two units as this emerges from ‘the governance operation in question’, or from any pertinent ‘scenarios of fact’.”
Even further highlight can be picked from the submission of Senior Counsel Pheroze Nowrojee in Speaker of the Senate (supra). According to Nowrojee, advisory opinions should be preferred where facts are uncontested, or where, if in contest, there is a permanent and clear record for reference. For Nowrojee, and the court concurred, all issues on which opinion is sought must revolve around constitutional interpretation
On whether the Court had the competence to interpret the Constitution, it held in RE IIEC (supra) at Paragraph 44, that it was within law for the court, when rendering an advisory opinion, to undertake a necessary interpretation of the Constitution. This position was buttressed in the Matter of the Principle of Gender Representation in the National Assembly and the Senate ( eKLR Sup.Ct. Const. Application no. 2 ) and further reaffirmed in Speaker of the Senate under Paragraph 62.
On whether an applicant ought to seek the advice of the attorney-general before proceeding to the Supreme Court, the court in RE IIEC (supra) at Paragraph 61 by dicta fell short of basing the competence of an application on whether such advice had been sought or not. It only stated that seeking advice is demonstration of “an applicant’s fidelity to due process.”
On whether advisory opinions can be given on pending legislation, the court in Speaker of the Senate (supra) was emphatic that the principle law, the Constitution, contemplated unique circumstances, such as issuing an advisory opinion on the effect of law. In this case, the second interested party had, instead of submitting the bill in question, the Division of Revenue Bill, to the Senate for discussion, forwarded it to the President for assent. Counsel for the second interested party Fred Ngatia submitted that the Supreme Court lacked jurisdiction to entertain the application as the legislative process had already been concluded. With the support of a litany of international authorities, he contended that advisory opinions are given pending legislative and executive action- not after. This position is one of the boldest diversions from international best practice. The other unique feature of the local regime is the reservation of advisory opinion for matters concerning county government (instead of a whole range of issues of public concern) (Oliver P. Field, 1949).
Arguably, the most important pronouncement of the court in RE IIEC was its definition, in Paragraph 83, of a competent application within Article 163 (6). The court set out a four tier test of establishing this competence as follows. “(1) For a reference to qualify for the Supreme Court’s Advisory-Opinion discretion, it must fall within the four corners of Article 163(6): it must be ‘a matter concerning county government.’ The question as to whether a matter is one ‘concerning county government’ will be determined by the Court on a case-by-case basis.
“(2) The only parties that can make a request for an Advisory Opinion are the national government, a State organ, or a county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as intervener (interested party) or as amicus curiae. “(3) The Court will be hesitant to exercise its discretion to render an Advisory Opinion where the matter in respect of which the reference has been made is a subject of proceedings in a lower Court. “(4) Where a reference has been made to the Court the subject matter of which is also pending in a lower Court, the Court may nonetheless render an Advisory Opinion if the applicant can demonstrate that the issue is of great public importance and requiring urgent resolution through an Advisory Opinion…
Are advisory opinions binding?
According to international best practice, they are not. They are mere expressions of intention given beforehand – a pre-empt of the court’s view on a particular matter before the contemplated intention comes to life. It is a court’s unique way of warning against decisions mala fides (see Field supra) Indeed, the biggest criticism of binding advisory opinions is that giving them results in a breach of separation of powers (Irving, Helen, 2004). The position in Kenya is different. RE IIEC settled the law in this area holding that advisory opinions are binding. Most emphatically in paragraphs 92 and 93 the court held:
“All these aspects of the Constitution are critical, in considering the effect of an Advisory Opinion. We, therefore, hold that an Advisory Opinion, in this context, is a ‘decision’ of the 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. “In our discussion of the advisory jurisdiction, we have adopted a circumscribed mandate in relation to the exercise of that jurisdiction. From such a reserved position, and in view of the pragmatic and discretionary nature of the mandate as we conceive it, we perceive that the Supreme Court’s decisions in this domain may significantly touch on legal, policy, political, social and economic situations. On this account, it is inappropriate that the Supreme Court’s Advisory Opinion should be sought as mere advice. Where a government or State organ makes a request for an Opinion, it is to be supposed that such organ would abide by that Opinion; the Opinion is sought to clarify a doubt, and to enable it to act in accordance with the law. If the 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 fair, and cannot be right.”
With regard to enforcement which is an area that clearly needs revisiting, the court held, “While an Advisory Opinion may not be capable of enforcement in the same way as ordinary decisions of the Courts (in the shape of Rulings, Judgments, Decrees or Orders), it must be treated as an authoritative statement of the law. The Opinion must guide the conduct of not just the organ(s) that sought it, but all governmental or public action thereafter. To hold otherwise, would be to reduce Article 163(6) of the Constitution to an ‘idle provision’, of little juridical value. The binding nature of Advisory Opinions is consistent with the values of the Constitution, particularly the rule of law.”
The court further held that the purpose of an Advisory Opinion is not only to settle the specific issues raised, but also to present a pragmatic course for problematic aspects of the operation of State organs, which position has been adopted ever since and most recently in In the Matter of the National Land Commission ( eKLR Sup.Ct. Const. Application no. 2). ^