THE BINDING CHARACTER OF AN ADVISORY OPINION10

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 to it. Article 96 of the UN charter states that
the general assembly or the Security Council may request the International Court of Justice for
an advisory opinion on any legal question. It further states that any organ of the UN or any
special agency may be authorized by the general assembly to request the court for an advisory
opinion on any legal question.
The Kenyan constitution of 2010 established the Supreme Court with power to issue advisory
opinions1 . The Supreme Court practices directions under section 31 offers guidelines 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.
ARE ADVISORY OPINIONS BINDING?
Advisory opinions under international law are not binding. . According to the ICJs website 2 “…
the Court’s advisory opinions are not binding. The requesting organ, agency or organization
remains free to decide, as it sees fit, what effect to give to these opinions. Despite having no
binding force, the Court’s advisory opinions nevertheless 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.”
Advisory Opinion under English Law is virtually unknown, though the Committee of Privileges of
the House of Commons is able to ask the Judicial Committee of the Privy Council to give an
Opinion. Although, it is not legally binding, and does not formally amount to a precedent, the
Opinion is generally accepted.3
Unlike other international legislation, In Kenya advisory opinions are binding and are held as a
decision of the court in reference to article 63(7) of the constitution that states, decisions made
by the Supreme Court Is binding to all courts except itself. The case of RE IIEC ([2011] elk Sup.
Ct. Const. Application No. 2) settled the law in this area 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….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
1
Constitution of Kenya art 163(6)
2
https://www.icj-cij.org/advisory-jurisdiction
3
Re Parliamentary Privilege Act 1770 [1958] AC 331.
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
In reference to article 163(6) of the constitution gives the Supreme Court power to give
advisory opinions when called upon. The advisory opinion should therefore be firm and
consistent since such decision is binding and should be applied even by the lower courts.  In the
matter of the National Land Commission4 the court held that, “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.” This further supports Article
163(7) of the constitution that decisions made by the Supreme Court are binding to all courts
except itself.
The court can be called upon to give advisory opinions on such instances:
To interpreted a fact in the constitution ;The Supreme Court may, indeed, while rendering an
Advisory Opinion under Article 163(6) of the Constitution, undertake any necessary
interpretation of the Constitution5, in order to rave uncertainty in regards to a matter provided
for under the constitution
Advisory opinions are also sort as an avenue for settling matters of great public importance,
which may not be suitable for conventional mechanisms of justifiability, an example being the
matter of the Principle of Gender Representation in the National Assembly and the Senate 6 
On whether advisory opinions can be given on pending legislation, advisory opinions can only
be given pending legislative and executive action- not after. This was illustrated in the case
Speaker of the Senate & another v Attorney-General & 4 others  7
The most important pronouncement of the court in RE IIEC8 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)
(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.
4
[2015] eKLR Sup. Ct. Const. Application No. 2 [2014]
5
RE IIEC ([2011] eKLR Sup. Ct. Const. Application No. 2) 
6
([2012] eKLR Sup Ct. Const. Appl. No. 2)
7
([2013] eKLR Sup.Ct. Const. Application No. 2 [34])
8
 (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…

CONLUSION
The issue on weather an advisory opinion should give by the Supreme Court should be binding
in my view clearly requires to be revisited. My argument is that the organ that requests for an
advisory opinion should be given a ground to decide on what they would want to apply from
the opinion granted by the court and what might not actually work in regards to the legal
matter in question.
Victoria Karimi Dorothy
Adm no. 20231649