The Juridical Status of Advisory Opinions in Kenya

7 Pages Posted: 18 Mar 2024

Date Written: March 10, 2024

Abstract

Jurisdiction is an expression of the law. “Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution.” The advisory jurisdiction of the Supreme Court of Kenya (“SCORK”) is provided for under Article 163(6) of the Constitution of Kenya, 2010 (“the Constitution”). It is expressed in the following terms: “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.” This paper makes three(3) fundamental claims regarding the advisory opinions of SCORK: (i) SCORK’s characterisation of its advisory opinions In the Matter of Interim Independent Electoral Commission [2011] eKLR (“Re IIEC”) as decisions of the Court within the meaning of Article 163(7) and thus binding on those who bring the issue before the Court, and upon lower Courts, in the same way as other decisions, was a classic case of SCORK expanding its advisory jurisdiction beyond the scope of Article 163(6) through judicial craft and innovation. Relatedly, section 13(6) of the Supreme Court Act, 2011, which now reads that an advisory opinion has the same binding effect as any other decision of the Court,” is unconstitutional to the extent that it amends or otherwise alters Article 163(6) of the Constitution; (ii) the only way to confer “binding force” on an advisory opinion is to characterise it as a decision which characterisation can only be legally achieved through express provisions in constitutive texts that render the opinions decisive/binding; and (iii) in any event, an advisory opinion need not be binding to be authoritative hence there is no utility value in SCORK insisting that its advisory opinions are binding when nothing in the text, language, object, procedure and spirit of Article 163(6) suggests that they are binding.

Keywords: advisory jurisdiction, opinions, decisions, discretion, declaratory judgment, judicial craft, judicial innovation, authority, binding force, utility value

Suggested Citation

Mutethia, Kenson, The Juridical Status of Advisory Opinions in Kenya (March 10, 2024). Available at SSRN: https://ssrn.com/abstract=4754596 or http://dx.doi.org/10.2139/ssrn.4754596

Kenson Mutethia (Contact Author)

Kenya School of Law (KSL) ( email )

P.O. Box 30369
Nairobi, 00100
Kenya

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