Jurisdiction of the Supreme Court to issue an advisory opinion

By Njeri Githang’a

Civil Practice and Procedure –advisory opinion – application seeking advisory opinion on the issue of first election date under the Constitution (2010) –where there were contradictory provisions on the issue-objection on the ground that the Supreme court lacked the jurisdiction- High Court’s jurisdiction in relation to the interpretation of the Constitution-whether the Supreme Court had a parallel jurisdiction with the High Court- Constitution of Kenya (2010) Article 163(3), (4), (5) and (6)

Advisory opinions –supreme courts advisory opinion- jurisdiction of the Supreme Court to issue an advisory opinion-procedure in seeking an advisory opinion from the supreme court-supreme courts guidelines on the matter- proceedings in references for Advisory Opinion -where the application before the court sought the “correct” interpretation of the different Constitutional provisions-whether the question placed before the court was a normal one within the Advisory-Opinion jurisdiction as envisaged under Article 163(6) of the Constitution- the juridical status and or precedent of advisory opinions-value in the Supreme Court’s Advisory Opinion- the Constitution of Kenya, Article 163(6)- Supreme Court Rules, 2011, clause 40(4) (c)

Issues:

1.      Whether the Supreme Court had a parallel jurisdiction with the High Court.

2.      Whether the question placed before the court was a normal one within the Advisory-Opinion jurisdiction as envisaged under Article 163(6) of the Constitution.

3.      The juridical status and or precedent of advisory opinions.

Held:

1.Jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions were donated by the Constitution.

2. The Supreme Court was established under Article 163 of the Constitution, and its jurisdiction was laid out in Article 163(3),(4),(5) and (6). Sub-article (6) stated “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.” In addition, the Supreme Court Act, 2011 (Act No. 7 of 2011), under s.14, conferred “special jurisdiction” upon the Supreme Court.
3. Advisory opinion in the context of Article 163(6) of the Constitution, meant 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.
4. Jurisdiction reposed in the Supreme Court, under Article 163(6) of the Constitution, employed the directory term “may”, it was hence purely discretionary, at the instance of the Supreme Court.
5. The applicant was a “State organ” under the Constitution of Kenya, 2010: and so, the applicant indeed had the capacity to seek the Supreme Court’s Advisory Opinion by virtue of Article 163(6).
6. Article 163(6) required that any request for an Advisory Opinion was to be“with respect to any matter concerning county government’’. There was a close connectivity between the functioning of national government and county government hence the expression “any matters touching on county government” should be so interpreted as to incorporate any national-level process bearing a significant impact on the conduct of county government. However, interpretation in that category was to be made cautiously, and on a case-by-case basis, so as to exclude matters which fell outside the Court’s Advisory-Opinion jurisdiction.
7. The election date was a question so central to county government, as to lie within the jurisdiction of the Court, in relation to the request for an Advisory Opinion.
8. The High Court had been entrusted with the mandate to interpret the Constitution. This empowerment by itself, however, did not confer upon the High Court an exclusive jurisdiction; for, by the appellate process, both the Court of Appeal and the Supreme Court were equally empowered to interpret the Constitution, certainly in respect of matters resolved at first instance by the High Court.
9. While the Advisory-Opinion jurisdiction was exclusively entrusted to the Supreme Court, the Constitution did not provide that the Court while rendering an opinion may not interpret the Constitution. It followed that the Supreme Court could, while rendering an Advisory Opinion under Article 163(6) of the Constitution, undertake any necessary interpretation of the Constitution.
10. In the matter before the court, similar questions, entailing constitutional interpretation, had been brought simultaneously before the High Court and the Supreme Court and such a move by parties was apt to precipitate contretemps in resolving the question of jurisdiction. In principle, the Supreme Court committed itself to order and efficacy in the administration of justice, and to that end it could require that the process of litigation commenced in the High Court, and entailing constitutional interpretation, be exhausted and, if need be, followed by appellate procedures. In such circumstances, the Court would be cautious in considering a request for an opinion, to ensure the two jurisdictions did not come into conflict; and each case would be carefully considered on its merits.
11. The application amounted to a request for an interpretation of Articles 101(1), 136(2) (a), 177 (1)(a) and 180(1) of the Constitution, and clause 9 of the Sixth Schedule to the Constitution. Conflict in the provisions sought the “correct” interpretation of the provisions; hence the question placed before the court was not a normal one within the Advisory-Opinion jurisdiction as envisaged under Article 163(6) of the Constitution.
12. In the light of the several petitions pending before the High Court, the application was inappropriate. The cases sought the interpretation of the Constitution, with the object of determining the date of the next elections. Those petitions raised substantive issues that required a full hearing of the parties; and those matters were properly lodged and the parties involved had filed their pleadings and made claims to be resolved by the High Court. To allow the application would constitute interference with due process, and with the rights of parties to be heard before a Court duly vested with jurisdiction and also constitute an impediment to the prospect of any appeal from the High Court up to the Supreme Court. The Court had to protect the jurisdiction entrusted to the High Court.
13. The Attorney- General was the “chief lawperson” of Government in its diverse dimensions. The various departments of the Government had the liberty to seek the Attorney-General’s opinion on any legal question of relevance to their day-to-day operations. The applicant should have sought the advice of the Attorney- General before moving the Supreme Court to give an Advisory Opinion as provided for under Rule 40(4) (c) of the Supreme Court Rules.
14. Seeking the advice of the Attorney-General did not compromise the independence of a State organ in any way, nor did it vest a veto power in that office. While the applicant after obtaining advice from the office of the Attorney-General was not necessarily bound by the same, for the purpose of the Court, the fact that such advice was sought in the first place, would demonstrate the applicant’s commitment, as well as fidelity to due process.
15. While the advisory jurisdiction of the Supreme Court of Kenya was granted by the Constitution, for the court to properly address the question before it, it had to be the Court seized with the facts. The advisory jurisdiction of the Supreme Court under Article 163(6) was discretionary in nature. That being the case, and further, given the fact that the advisory jurisdiction was a novel phenomenon in Kenya, it was expedient that the Court progressively develop guidelines for the exercise of this discretion. The broad guidelines for the exercise of the Supreme Court’s Advisory-Opinion jurisdiction would be;

a)      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.

b)      The only parties that can make a request for an Advisory Opinion are thenational government, a State organ, or county government. Any other person or institution may only be enjoined in the proceedings with leave of the Court, either as an intervener (interested party) or as amicus curiae.

c)      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. However, where the Court proceedings in question have been instituted after a request has been made to this Court for an Advisory Opinion, the Court may if satisfied that it is in the public interest to do so, proceed and render an Advisory Opinion.

d)      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. In addition, the applicant may be required to demonstrate that the matter in question would not be amenable to expeditious resolution through adversarial Court process.

16. The guidelines coincided with the conviction that the plain terms of the Constitution should be read in the broader context of its spirit and philosophy; and on that basis, applications seeking Advisory Opinion had to be resolved as necessitated by the merits of each case. In view of the practical and legal constraints attendant on Advisory Opinions, the Court would in principle exercise that jurisdiction with appropriate restraint.
17. In common with other final Courts in The Commonwealth, Kenya’s Supreme Court was not bound by its decisions, even though the court had to remain alive to the need for certainty in the law. The rules of constitutional interpretation did not favour formalistic or positivistic approaches under Articles 20(4) and 259(1). The Constitution had incorporated non-legal considerations, which had to be taken into account, in exercising its jurisdiction. Judicial authority was derived from the people under Article 159(1) and hence that authority had to be reflected in the decisions made by the Courts.
18. Article 163(7) of the Constitution stated that “[a] all courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.”The subordinate Courts were bound by decisions of superior courts. The Supreme Court, while observing the importance of certainty of the law, had to nurture the development of the law in a manner that eschewed formalism, in favour of the purposive approach. Interpreting the Constitution was a task distinct from interpreting the ordinary law. The very style of the Constitution compelled a broad and flexible approach to interpretation.
19. Kenya’s Constitution provided expressly for Advisory Opinions, under Article 163(6); and that called for a new approach to rationalization. In the case before the court, several parties had joined the proceedings, to argue points of law and of fact. The Supreme Court had to listen to competing interpretations of the law advanced by the parties to the case; and it then decides on the issue of interpretation, making a reasoned choice.
20. The Supreme Court’s opinion could not be on the same plane as that of law officers from the Attorney-General’s Chambers, or, indeed, of any other State organs that could appear before the Court pleading for an Advisory Opinion. Although the proceedings were not adversarial, the involved robust intellectual rigour, reflected in the focused, written submissions the illuminating authorities and contributions in scholarly journals, as well as submissions that reflected the spirit of the Constitution were all as powerful as though the reference was adversarial in nature.
21. An Advisory Opinion, in the context before the court was a “decision” of the Court, within the terms of Article 163(7), and was thus binding on those who brought the issue before the Court, and upon lower Courts, in the same way as other decisions. It was inappropriate that the Supreme Court’s Advisory Opinion should be sought as mere advice. Where a government or State organ made a request for an Opinion, it was to be supposed that such organ would abide by that Opinion; the Opinion was sought to clarify a doubt, and to enable it to act in accordance with the law. If the applicant were not to be bound, 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.
22. 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 had to 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 otherwise it would reduce Article 163(6) of the Constitution to an “idle provision” of little juridical value. The binding nature of Advisory Opinions was consistent with the values of the Constitution, particularly the rule of law. An Opinion of the Supreme Court was hence as binding as much as any other decision of the Court.

Preliminary objections upheld, the High Court to proceed to hear and determine the several petitions pending before it.

Sum Model Industries Ltd v Industrial and Commercial

Development Corporation [2011] KLR- SCK

Civil Application 1 of 2011

(An application for leave to appeal against the judgment and decree of the Court of Appeal given at Nairobi (Omolo, Bosire & Githinji, JJA) dated 8th June, 2007

in Nairobi Civil Appeal No. 229of 2001)

Supreme Court of Kenya December 2, 2011

PK Tunoi, SC Wanjala JJSC

Reported by Njeri Githang’a Kamau

Issues

i. Application for leave to appeal against a decision of the Court made under rules 30 (2) and 42 (1) of the Supreme Court Rules, section 3 of the Supreme Court Act and Chapter 4 and articles 10 and 159 of the Constitution of Kenya, 2010

ii. Whether the Court could invoke its special jurisdiction and call for a review of the Court of Appeal’s judgment under section 14 of the Supreme Court Act as prayed by the applicant where article 163 (4) (b)of the Constitution was not cited.

Jurisdiction – Appellate Jurisdiction – Supreme Court’s Appellate Jurisdiction - Supreme Courts guidelines on the matter- where the applicant had not sought leave from the Court of Appeal – failure by the applicant to cite article 163 (4) (b) of the Constitution -whether the Court could invoke its special jurisdiction and call for a review of the Court of Appeal’s judgment under section 14 of the Supreme Court Act as prayed by the applicant- Constitution of Kenya 2010, article 163 (4) (b)- Supreme Court Rules, rule (30) (2)

Held:

1. The appellate jurisdiction of the Supreme Court was clearly set out in article163 (4) of the Constitution of Kenya, 2010. The article provides that appeals shall lie from the Court of Appeal to the Supreme Court:-

(a) As of right in any case involving the interpretation or application of this Constitution; and

(b) In any other case in which the Supreme Court, or the Court of Appeal certifies that a matter of general public importance is involved, subject to clause (5).

Clause 5 provides that a certification by the Court of Appeal under clause 4 (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.

Rule 30 (2) of the Supreme Court Rules provided that where an appeal lies only with leave or on a certificate that a point of law of general public importance is involved, it shall be necessary to obtain such leave or certificate before lodging the notice of appeal.

2. The relevant provisions pursuant to which the application ought to have been initiated were article 163(4)(b) of the Constitution as read together with rule (30) (2) of the Supreme Court Rules. Before an appeal under the provisions could be entertained; either the Supreme Court or the Court of Appeal had to be satisfied that it involved a matter of general public importance. Upon being so satisfied, the Court could then issue a certificate for leave to appeal. The applicant had not cited article 163 (4) (b) of the Constitution as the basis for the application before the court.

 3. The application being for leave to appeal against a decision of the Court of Appeal, it would have been good practice to originate the application in the Court of Appeal which would have been better placed to certify whether a matter of general public importance was involved. It was the Court of Appeal which had all along been seized of the matter on appeal before it. That Court had the advantage of assessing the facts and legal arguments placed and advanced before it by the parties. Accordingly, that Court should have ideally been afforded the first opportunity to express an opinion as to whether an appeal should lie to the Supreme Court or not.

4. If dissatisfied with the Court of Appeal’s decision in that regard, the applicant would then be at liberty to seek a review of that decision by the Supreme Court as provided for by article 163 (5) of the Constitution.

5. To allow the applicant to disregard the Court of Appeal against whose decision it intended to appeal and go directly to the Supreme Court in search of a certificate for leave, would lead to abuse of the process of court.

6. The Court could not invoke the special jurisdiction and call for a review of the Court of Appeal’s judgment under section 14 of the Supreme Court Act as prayed by the applicant as a perusal of the documents in support of the application had not disclosed any facts that would bring the application within the ambit of section 14 of the Act.

Civil Application Number 1/2011 to be filed before the Court of Appeal pursuant to article 163(4) of the Constitution for determination by the said Court. Same Order to be applied to Civil Application Numbers 2 of 2011 and 3 of 2011

Cases

None Mentioned

Statutes

East Africa

1. Constitution of Kenya, 2010 articles 10,159,163(4) (b) (5) – (Interpreted)

2. Supreme Court Act, 2011(Act No 7 of 2010) sections 3, 14 – (Interpreted)

3. Supreme Court Rules, 2012(Act No 7 of 2010 Sub Leg) rules 30 (2); 42 (1) – (Interpreted)

..

Civil Practice and Procedure – advisory opinion – directions - motion on advisory opinion taken out by the Commission for the Implementation of the Constitution (CIC) under Article 163 (6) of the Constitution as read with section 21(2) of the Sixth Schedule of the Constitution