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.

ADVISORY OPINION OF THE SUPREME COURT

This Court’s jurisdiction to issue advisory opinions is anchored in the Constitution under Article 163(6)
which stipulates as follows:

“The Supreme Court may issue 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”

ACTORS
1. National government
2. County government
3. Any state organ
4. Subject matter should be a matter concerning county governments.

Article 163(6) of the Constitution, contemplates that a legal opinion must be seeking to
unravel a legal uncertainty in such a manner as to promote the rule of law and the public
interest as held in In the Matter of the Principle of Gender Representation in the
National Assembly and the Senate [2012]eKLR

Further, on the Supreme Court’s jurisdiction to offer advisory opinions, Section 13 of the Supreme Court
Act, 2011 provides as follows:

“An advisory opinion by the Supreme Court under Article 163(6) of the Constitution shall
contain the reasons for the opinion and any judges who differ with the opinion of the majority
shall give their opinions and their respective reasons.”

Likewise, the Supreme Court Rules, 2020 also provide for the exercise of this jurisdiction in similar terms
under Rule 50(1).
Section 13(6)
Section 27 SC a decision of the SCORK may be enforced by the high court

The criteria for determining whether a matter is proper before Supreme Court was also set out in Re
Matter of the Interim Independent Electoral Commission, SC. Constitutional Application No. 2 of
2011; [2011] eKLR in which the supreme court rendered itself as follows;

“With the benefit of the submissions of learned counsel, and of the comparative assessments recorded
herein, we are in a position to set out certain broad guidelines for the exercise of the Supreme Court’s
Advisory-Opinion jurisdiction: SC. Reference No. 1 of 2020 5

(i) 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.
(ii) The only parties that can make a request for an Advisory Opinion are the national 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.

(iii) 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.

(iv) 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 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.

Furthermore, in the Re Matter of the Principle of Gender Representation in the National Assembly
and the Senate, SC. Advisory Opinion No. 2 of 2012; [2012] eKLR, at paragraph [17] and [18], the
supreme court emphasized that the exercise of this Court’s jurisdiction under Article 163(6) of the
Constitution is discretionary and only deserving matters will justify the exercise of such jurisdiction.

BINDING NATURE OF SUPREME COURT’S ADVISORY OPINION

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 (2011) eKLR at
paragraph 93, stated that;

“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”

ADVISORY OPINIONS OF THE ICC

An advisory opinion of the ICJ is a legal advice provided to the UN or a specialized agency by the
International Court of Justice (ICJ), in accordance with Article 96 of the UN Charter. The Court’s
jurisdiction on this matter is thus established in article 96 of the UN Charter, which states that

1. “The General Assembly or the Security Council may request the International Court of Justice to
give an advisory opinion on any legal question.
 2. Other organs of the United Nations and specialized agencies, which may at any time be so
authorized by the General Assembly, may also request advisory opinions of the Court on legal
questions arising within the scope of their activities.”

section 65 of the ICJ statute ; ICJ can issue advisory opinions.

From the above it is clear that there are specialized body organs which have the authority or rather the
power to request for an advisory opinion from the ICJ, this is;

a) The General Assembly and the Security Council. These organs may request for an advisory
opinion from the ICJ on “any legal matter.”

b) Other organs and the 16 specialized agencies of the UN whom may request advisory opinions on
“legal questions arising within the scope of their activities.

Since States alone are entitled to appear before the ICJ; public (governmental) international organizations
cannot be parties to a case before it. However, a special procedure is available to such organizations and
to them alone known as the advisory procedure. This procedure is available to the five United Nations
organs, fifteen specialized agencies and one related organization. Though based on contentious
proceedings, advisory proceedings have distinctive features resulting from the special nature and purpose
of the advisory function.

Despite having no binding force, the ICJ’s advisory opinions carry great legal weight and moral authority.
They are often an instrument of preventive diplomacy and help to keep the peace. In their own way,
advisory opinions also contribute to the clarification and development of international law and thereby to
the strengthening of peaceful relations between States.

ICJ advisory opinions are essentially advisory; in other words, unlike the Court’s judgments, they are not
binding. The requesting organ, agency or organization remains free to give effect to the opinion as it sees
fit, or not to do so at all. However, certain instruments or regulations provide that an advisory opinion by
the Court does have binding force (e.g., the conventions on the privileges and immunities of the United
Nations).

Nevertheless, the Court's advisory opinions are associated with its authority and prestige, and a decision
by the organ or agency concerned to endorses an opinion is as it were sanctioned by international law.

In conclusion, advisory opinions are not binding, but may inform the development of international law.

DIFFERENCES BETWEEN JUDGMENTS AND ADVISORY OPINIONS

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.