THE UNIVERSITY OF NAIROBI.

REGISTRATION NUMBER: R67/143873/2022

LECTURER: DR KEN OBURA.
Question: Convince whether Kenya is a monist or a dualist state.
Kenya is a hybrid of the monist and dualist system, in that the approach exhibits traits of both the
monist and dualist approach depending on the international law applied. Dualism can be
described as the system in which the municipal law and international are two independent legal
systems that should apply differently in terms of jurisdiction. The monist approach however, is
the system in which international law and municipal law are part of the same legal system and
thus international law needs to be domesticated or transformed but incorporated into the
municipal courts.

Prior the promulgation of the constitution of Kenya 2010, Kenya has been operating under the
dualist system. Though the renounced constitution was silent on the domestic application of
international law, Kenya being a common law country subscribed to the common law doctrine of
dualism. Without further looking, it can be seen in section 3(1) and 3(2) of the judicature Act
which lists the sources of law in Kenya. In this list international law is conspicuously missing.
This means that if one wanted to aware of the sources of law in Kenya, it was obvious that
international law will not be one of them. Thus, treaty provisions did not immediate effect in
domestic law. For international law to become part and parcel of national law incorporation or
domestication was necessary either by new legislation, amended legislation or existing
legislation before legal recognition.

After the promulgation of the 2010 constitution of Kenya, Kenya transformed the manner in
which international laws and treaties are to be applied in Kenya, thus adopting the monist
system. The new constitution brought about many changes to the legal order of the country, and
the most relevant is the inclusion of Article 2(5) and 2(6) of the constitution that states
respectively; “General rules of international law shall form parts of the laws of Kenya” and “any
treaty ratified by Kenya shall form part of the law of Kenya under constitution.” These two
articles bespeak that Kenya’s legal framework cannot disregard international law as a source of
law in Kenya and that any treaty ratified by Kenya shall form part of the law under this
constitution. Article 2(5) talks about the general rules of international law and article 2(6)
provides for ratified conventions, which the parliament passed the Treaty Making and
Ratification Act 2012, which provides the procedure for the making and ratification of treaties
and connected purposes. This norm attained the status of customary international law, which is a
general law of international binding all states irrespective of whether they are ratified or not.
Kenya is therefore as it stands a monist common law country by virtue of Article 2(6) of the
constitutions. Another Article 259(1) also calls for the interpretation of the constitution in a
manner that a) promotes its purpose, values and principles, b) Permits the development of the
law. It is in this regard that the current courts are shifting towards a monist legal system. For
monism seek to incorporate international law as long as it does not interfere with the local law
and to protect human rights.
However, there are Articles in the constitution 2010 that are particularly concerning; Article
21(4) and Article 51(3) of the constitution that states respectively; “the state shall enact and
implement legislation to fulfill its international obligations in respect of human rights and
fundamental rights” and “parliament shall enact legislation that take into account the relevant
international human rights instruments.” These two provisions are a direct contradiction of the
monist system which does not require legislation to be made with respect to ratified treaties.
Chapter 21(4) also implies that international treaties that are of pertinence to Human rights and
Fundamental freedoms of Kenyans must be domesticated for it to have legal efficacy. This
directly means that Kenya is a Dualist state to the extent of implementing international human
rights treaties. Therefore, the constitution 2010 does not prescribe a coherent structure on treaty
practice or provide clear instructions on signature and ratification treaties.

In conclusion, Kenya’s treaty practice contains both monist and dualist tendencies and is
therefore a hybrid of the two.
References.
Bulto T., The Monist-Dualist divide and the supremacy clause: Revisiting the status of Human
rights treaties in Ethiopia.

Herman Omiti. The monist dualist dilemma and the place of international law in the hierarchy of
valid norms under the construction of Kenya 2010.

Franceschi G., Constitutional regulation of international law in Kenya 2011.

Ismail Jama. What is the place of international law in Kenya.

Marian Brindusa. The dualist and monist theories. International laws comprehension of these
theories.