In this case, the applicant, by way of Advisory Opinion No.1 of 2012, requested to rewrite, redraft, repeal and/or amend Rule 40(1) now Rule 41(1) of the Supreme Court Rules 2012 in a manner that enables any person, whether human or corporate, to seek an advisory from Supreme Court, under Article 163(6) of the constitution.
The applicant, who was the Kenya National Human Rights Commission, stated that the rule was restrictive in only stating 3 groups of people able under law to seek an advisory opinion concerning county governments. Therefore, any person who is not national government, a State organ or a county government cannot seek an advisory opinion before the Supreme Court.
This contends the fundamental basis of the Constitution which gives citizens unlimited, unfettered and unrestricted access to justice and the Courts.
As a result, the applicant stated that Rule 41(1) should be amended or redrafted as it may violate Articles 19,20,21,22,48 and 50 of the Constitution of Kenya.
According to the applicant, the rule may be wrongly interpreted in a narrow and restricted way that would limit access of the courts for those not expressly stated in the Article.
This would amount to discrimination and therefore defeat the fundamental basis of the Constitution which gives citizens unlimited and unrestricted access to justice and the courts.
Rule 40 (1) of the Supreme Court Rules 2011 was published under Legal Notice No. 141 pursuant to the Supreme Court Act No. 7 of 2011 and Article 163 (8) of the Constitution of Kenya. It reads as follows:
“The national government, a State organ or county government may apply to the Court by way of reference for an advisory opinion under Article 163(6) of the Constitution”
The Supreme Court Rules, 2011 have since been revoked vide Rule 56 of L.N No. 123 of 2012. However, the contents of Rule 40(1) of those Rules have been replicated word for word, as Rule 41(1) of the Supreme Court Rules 2012.
Article 163(6) of the Constitution provides that,
“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.”
The applicant further expressed the view that a holistic reading of the Constitution and, in particular, Articles 1, 19, 20, 21, 22, 27, 48 and 50 thereof, supports the proposition that any person whether human or corporate, may seek an advisory opinion on county government under Article 163(6) of the Constitution, in addition to the national government, a State organ, or county government. Therefore, they contended, limiting access to this Court in terms of Rule 41 (1) of the Supreme Court Rules, 2012 may amount to discrimination under the Constitution.
Submissions by the Respondents
The respondents, who were the A.G and the Commission on Administrative Justice, stated that the court (Supreme Court) lacked jurisdiction to entertain the matter.
Requests for an advisory opinion are limited to matters concerning county government; and that the application before the Court did not in any way concern itself with county government.
They stated that the applicants were claiming a violation of rights. Therefore, the proper forum would be a petition at the High Court, not the Supreme Court.
The respondents added that Rule 41(1) could only be amended/re-written/redrafted after Article 163(6). This is a matter that seeks the interpretation of the Constitution and not an advisory opinion.
The applicant was seeking a declaration of Article 163(6) as being unconstitutional through the guise of an advisory opinion. To grant an advisory opinion in the terms of the applicant would be equal to amending the constitution through the back door.
The courts’ ruling on Advisory Opinion No.1 of 2012 was that it ought to have been filed as a Constitutional reference before the Constitutional and Human Rights Division of the High Court.
The court also stated that it was the intention of the makers of the constitution to limit persons who can seek an advisory opinion. Persons in general do not have a right to an advisory opinion of the Supreme Court.
The rights declared in the Constitution are enforceable by way of regular court proceedings. Such proceedings do not necessarily include the Supreme Court advisory opinions. Such opinions are of an exceptional nature and by design are meant to serve as a device in aid of the main tasks of the institutional conduct of governance.
The judge in making the decision he considered the In the Matter of the Interim Independent Electoral Commission: Constitutional Application Number 2 of 2011 Case. Where the guidelines for the exercise of its advisory opinion were set.
One of the guidelines states that “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 interviner or Amicus Curiae.
Hence article 163(6) should be interpreted holistically, broadly and robustly to the extend all persons and not just the entities mentioned their can apply for advisory opinion.
A holistic interpretation of the constitution means interpreting it in context. That is, reading the constitution alongside and against other provisions so as to maintain a rational explanation of what the Constitution means in light of its history, the issues in dispute and the prevailing circumstances.
Therefore Advisory Opinion No.1 of 2012 was dismissed.
No orders as to costs.