Introduction
Black’s Law Dictionary (2nd Edition) defines an Advisory Opinion as non-binding statement by a Court of its interpretation of the law on a matter submitted for that purpose. Rogers and Vanberg, in their article entitled Judicial Advisory Opinions and Legislative Outcomes in Comparative Perspective define advisory opinion as answers provided by the members of a high court to questions posed by the executive or a legislative body on a legal question pending before that authority.[1] The supreme court of Kenya in In the Matter of Interim Independent Electoral Commission [2011] eKLR avers that advisory opinions, in character, stand quite apart from the situation in a normal judgment or judicial decision, which will be marked by pleadings, causes of action, parties, evidence, issues for determination.
This paper seeks to analyze the binding nature of advisory opinions through a comparative study of the Permanent court of Justice, the International Court of justice and the Supreme Court of Kenya.
The Permanent Court of International Justice.
The permanent court of international justice often referred to as the world court, existed from 1922 to 1946 It was an international court attached to the League of Nations. The courts mandatory jurisdiction came from three sources: the optional clause of the League of nations, general international conventions and special bipartite international treaties. The court could issue either judgments or advisory opinions. Judgments were binding will advisory opinions were not. In practice, members of Nations followed the advisory opinion anyway, as they feared that otherwise, they could undermine the moral and legal authority of the court and League.
The international Court of Justice.
The international court of justice is the principal judicial organ of the United Nations. It settles legal disputes between member states and gives advisory opinions to United Nations organs and specialized organs. Its advisory opinions are non-binding.
Supreme Court of Kenya
Article 163(7) of the constitution of Kenya, 2010 confers discretionary jurisdiction on the Supreme Court to issue advisory opinions. Such opinions are issued at the instance of the national government, any state organ or county governments on matters concerning county governments.[2]
The advisory opinions issued by the court are binding. This argument is evident by the pronouncement of the Supreme Court in In the Matter of Interim Independent Electoral Commission (Supra) at paragraph 93, “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” Further in In the Matter of the National Land Commission [2015] eKLR, the supreme court at paragraph 316 thus pronounced itself “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”
Cited Works
[1] Judicial Advisory Opinions and Legislative Outcomes in Comparative Perspective, American Journal of Political
Science, Vol. 46 No.2 ,2002, pp. 379-397
[2] Article163(7), Constitution of Kenya,2010
Authored by: Beth Ng’ang’a