Many legal scholars have translated article 2(5) and 2(6) of the constitution of Kenya to mean

Kenya is monist state.1 Why is this so? Monism first of all refers to the following: international
law automatically forms part of Kenyan law without need for adoption of legislations, it applies
the doctrine of incorporation in regards to implementation and finally domestic law must be
consistent with international law.2 A comparative analysis with the Kenyan 2010 system shows
that article 2(5) does meet this criterion.

“General principles of international law shall form part of Kenyan law”.3 This provision would
be significant in solving an issue which is not clear either in treaty law or addressing gaps
between treaty law or addressing any gaps between treaty law and domestic provisions. It would
also be important where certain rules are contained in an international treaty to which Kenya is
not a party but which is important in substance and has a large number of contracting parties, if it
can be shown that the rules in the treaty are a codification of international customary law. 4 In
practice of course, the determination of these general principles is on the onus of the domestic
courts but this does not negate the fact that they are part and parcel of international customary
law which is in essence binding to all states.

Additionally, article 2(6) implies that treaties ratified shall form part of the law of Kenya. This
accedes to the issue of incorporation whereby the treaties ratified do not need to be transformed
to domestic legislations to form the law of Kenya. Finally, the mere fact that article 2(5) and (6)
are mentioned in the hierarchy of laws of Kenya evinces that there is a grundnorm5 in Kenya in
which international law is a big part of.

1
Mwagiru, M., From Dualism to Monism: The Structure of Revolution in Kenya’s Constitutional Treaty Practice,
Journal of Language, Technology & Entrepreneurship in Africa, Vol. 3 No. 1 (2011)
2
Joseph Ndirangu Maina, “Do articles 2 (5) and 2(6) of the Constitution of Kenya 2010 transform Kenya into a
monist state?” (2013)
3
Article 2(5) of The 2010 Constitution of Kenya
4
The Kenya National Commission on Human Rights, Making the Bill of Rights Operational: Policy, Legal and
Administrative Priorities and Considerations (2011)
5
Rigaux, F., Hans Kelsen on International Law, European Journal of International Law 9 (1998), 325 - 343