ODERO DAVID ONYANGO

LLB/2214/20

PUBLIC INTERNATIONAL LAW

CAT 1 & 2

QUESTION 1: Kenya’s state practice regarding the relation between international law and

municipal law;

QUESTION 2: Does article 2(6) of the Kenya’s constitution turn Kenya into a monist state?
QUESTION 1

INTRODUCTION

The relationship between international law and municipal law since time immemorial has been

characterized from a form of monist or dualist perspective. Regardless of the characterization,

the approach a country adopts has a great significance for the effectiveness and application of

international law within the domestic legal system. It cannot go without noting that, the

increasing use and relevance of international law in Kenya’s legal system reveals a great deal

about how open the country is becoming to the influence of international law.

Ideally, there have been several attempts by international law scholars to dissipate the indeed

true relationship between international law and the domestic jurisdiction of state. A difference in

the factual background of international law and municipal law has to a larger extent brought a

difficulty in attaining the finality in opinions in this area. Indeed, international law has developed

in a form which is different from that of municipal law. It is purely instructive that domestic

legal system is characterized by the presence (within its domestic legal order) of a legislature,

courts with compulsory jurisdiction and centrally organized sanctions.

There exist crucial fundamental elements by reference to which a modern domestic legal order is

conclusively ascertained. International law on the other hand lacks these features with a

persistent doubt that international law is not really law. At best according to kelsen it is positive

morality. Unarguably, the existence of these features by which municipal legal system is

determined accounts for most of its binding characters: a virtue which international law is often

denied. It is the virtue namely the binding character of international law that is at the heart of
debates concerning the extent to which rules of international law are enforced in domestic

jurisdiction.

Different states have different approaches of implementation of international law in their

municipal law realm. Interestingly, various illuminating theories seek to place a relationship

between international law and municipal law. Implicit in each theory is, the recognition that

interaction between international and municipal law must take place within the context of a clear

legal framework. Theorists who formulated these theories espoused different persuasive basis

upon which they sought to justify their views. None of these theories are however immune to

limitations.

Each state is a sovereign state is a sovereign state and are equal as posited by Malcolm Nathan

Shaw. In reality and a contemporary world enshrined with global rivalries, not even the most

powerful state can be sovereign. Interdependence and close-knit character of contemporary

international commercial and political society ensures that any action of a state could have a well

profound repercussions and decisions under considerations by other states1.

The dispensation of international and municipal law in Kenya.

The constitution of Kenya 2010, provides that general rules of international law form part of the

law of Kenya. A position that has necessitated the need for an examination of Kenya’s stand on

the relationship between its municipal law and international law. In this light I intend to examine

the intricacies of treaty practice in Kenya and how it may impact Kenya’s diplomacy and foreign

policy.

1
Malcom N shaw , international law
The constitution of Kenya 2010 makes a clear justification, that any treaty or convention ratified

by Kenya is deemed to form part of the law of Kenya2. Debates have since emerged from then

that this provision has converted Kenya from a dualist to a monist state with regard to treaty

practice. What then is the policy framework on treaty practice?

Ojwang' and Franceschi in their journal article on constitutional Regulation of Foreign Affairs

Power in kenya3 advance the argument that treaty practice in Kenya should be regulated by the

constitution. Appreciating the same position, Mwagiru in his article on Kenya's treaty practice 4,

observes that Kenya’s treaty practice is now enshrined constitutionally.

The constitutional provisions relevant to treaty practice are identified to include:

Article 2(1) provides that the constitution is the supreme law of the Republic and binds all

persons and all state organs at both levels of government. Sub article 6 thereof provides that any

treaty or convention that has been ratified by Kenya forms part of the law of Kenya.

Article 1(3) provides that sovereign power under the constitution is delegated to: parliament and

the legislative assemblies in the county governments, the national executive and the executive

structures in the county governments, and the Judiciary and independent tribunals.

Additionally, article 6(2) states that the governments at the national and county levels are distinct

and interdependent and shall conduct their mutual relations on the basis of consultation and

cooperation.

Article 94(1) provides that the legislative authority of Kenya at the national level is vested and

exercised by parliament. Sub article 5 thereof provides that no person, or body other than
2
The constitution of kenya article 2(6)
3
Ojwang' J and Franceschi L.. Constitutional Regulation 6th Foreign Affairs power in Kenya: A comparative
assessment, journal of African Law vol. 46
4
Mwagiru M From Dualism to Monism: The structure of Kenyas constitutional Treaty practice
Parliament, has the power to make provision having the force of law in Kenya execept under

authority by the constitution or by legislation. Article 93(1) provides that parliament shall consist

of the national assembly and the Senate.

Article 95(3) Grant's the National assembly the powers to enact legislation. Where a bill

concerns counties, article 96(2) requires that the senate participate in the law making role by

considering, debating and approving of such Bills5 in line with article 1(4) which defines the

levels of government in Kenya.

Article 95(5) provides that the national assembly is empowered to review the conduct in office of

the president, the deputy president and other state officers and also to initiate the process of

removing them from office. The national assembly under sub section 6 of the same article is

tasked with the responsibility to approve declarations of war and extensions of state emergency.

Under article 152 of the constitution, parliament is obligated to vet presidential nominees for the

positions of the cabinet secretaries including the cabinet secretary responsible for foreign Affairs

whose office is established under article 240(2). Parliament also has power to sack the same

secretaries inter alia, committing a crime under municipal or international law.

The fifth schedule of the 2010 constitution outlining the various legislations to be enacted by

parliament is silent on whether any legislation is required to expound on article 2(6) or the 2010

constitution.

There are several articles in the constitution 2010 particularly concerning international human

rights instruments which require legislation to be enacted as follows:

5
Senate's participation in the law making process.
Article 21(4) requires the state 8enact and implement legislation to fulfill its international

obligations in respect of human rights and fundamental freedoms. Further article 51(3)(b)

requires parliament to enact legislation that takes into account the relevant international human

rights instruments.

The Executive of the Republic of Kenya at national level, is enshrined in the constitution 2010 as

comprising the president, deputy president and the rest of the cabinet. With that regard the

president exercises the executive authority of the Republic with the assistance of the Deputy

President and cabinet secretaries. The president by dint of article 111 is granted the power to

appoint a person to hold or act in the office of the ambassador, high commissioner or other

principle representative of Kenya in the country and remove them from office.

The president shall once every year submit a report for debate to the national assembly on the

progress made in fulfilling the international obligations of the Republic ad provided for under

article 132 of the constitution (2010).

Article 240 establishes a National security council with the power to integrate domestic, foreign

and millitary policies relating to national security. With the approval of parliament the council

may also approve the deployment of foreign forces in Kenya.

The Rose Moraa’s case6 was decided under the independence constitution. The main issue for

determination was whether section 24(3) of the Children’s Act was in violation of the

constitution, international Conventions and Charters f which Kenya is a signatory. In dismissing

the application, the court stated that the general principle, in the absence of local legislation

requiring automatic domestication of a treaty, is that a convention does not automatically become

municipal law unless by virtue of ratification. On this the court cited Bangalore principles 1989.
6
Rose Moraa & another v Attorney General
The court further stated that in common law countries where national law is clearly inconsistent

with international obligation which a country undertakes, national courts have an obligation to

give effect to national law.

Article 2(1) of the constitution of Kenya 2010 provides that the constitution is the supreme law

of the land. Article 2(6) thereof provides that any treaty or convention ratified by Kenya shall

form part of the law of Kenya under this constitution. These constitutional provisions do not

however give clear picture as to the truly intended treaty practice. 2010 constitution can be said

to contain a transitional clause providing that all the law in force immediately before the 27 th

august 2010, would continue to apply and should be construed with alterations, adoptions,

qualifications and exceptions necessary to bring it to conformity with the constitution7.

The treaty making and ratification Act, 2012 was enacted to give effect to the provisions of

article 2(6) of the constitution and to provide the procedure for the making and ratification and

connected purposes. The Act, inter alia, offers a guideline on the initiation, negotiation and

ratification of treaties.

Some of the provisions of Act which are directly relevant to treaty practice are as follows:

Section 2(1) defines treaty as an international agreement concluded between states in written

form and governed by international law, whether embodied in a single instrument or in two or

more related instruments and whatever it's particular designation and includes a convention. This

is a direct import from the Vienna convention on the law of Treaties (VCLT)8. Section 3 limits

the application of the Act to treaties which are concluded by Kenya after its commencement.

7
The 2010 constitution of kenya schedule 6, clause 7(1)
8
Vienna convention on the Law of Treaties (1969), article 2, 1(a)
Section 4 imposes the general responsibility for treaty negotiation on the executive. Section

5provides that the national executive or the relevant state department shall initiate the treaty

making process.9

On ratification of treaties, the Act requires approval by both the cabinet and parliament. Section

7 provides that where the government intends to ratify a treaty, the cabinet secretary of the

relevant state department shall, in consultation with the Attorney General, submit to the cabinet

the treaty, together with a memorandum outlining the objects and subject matter of the treaty

including the summary of the process leading to the adoption of the treaty and the date of

signature of the treaty.

Where the cabinet approves the ratification of a treaty, section 8 provides that 'the cabinet

secretary shall submit the treaty and a memorandum on the treaty to the speaker of the national

assembly ' subsection 2 provides that once a treaty is approved under section 8 then it shall,

depending on the subject matter of the treaty, be considered by both or relevant house of

parliament. Subsection 4 thereof provides for approval by parliament of the ratification of a

treaty with or without reservations to specific provisions of the treaty. Section 4(6) provides that

where one house approves the ratification of a treaty and the other house refuses to approve the

ratification of the treaty, the treaty shall be referred to the mediation committee 10.

Should both houses of parliament refuse to approve a treaty ratification, section 8(7) provides

that the speaker of the two houses shall submit their decision to the relevant cabinet secretary

within 14 days of the decision. Section 8(8) allows for resubmission of a treaty to the national

9
The relevant state department is defined at section 2 of the Act as 'the state department responsible for the
subject matter of the treaty to be approved for ratification '.
10
Article 112 of the constitution 2010 also provides the same procedure with regards to ordinary Bills concerning
county governments. The role of the mediation committee is set out under article 113
assembly and where applicable the senate, where approval for the ratification of the treaty had

been initially refused.

Section 9 provides that where parliament refuses to approve the ratification of a treaty the

government shall not ratify the treaty. Section 12 provides that no treaty shall be ratified on

behalf of the government of Kenya unless it has been considered approved by the cabinet and

parliament in accordance with the Act.

As per section 10, "all instruments of ratification of a treaty shall be signed, sealed and deposited

by the cabinet secretary at the requisite international body and a copy of the same shall be filed

with the registrar of treaties" established to serve as the depository of all treaties to which Kenya

is a party. The registry should have a record of all trearies: contain the status of all treaties

pending ratification or domestication as well as the timelines for such ratification or

domestication

Regarding implementation of treaties, section 15 provides that the cabinet secretary shall cause

to be laid before the national assembly, at least once every financial year, a report containing

records of all treaties which Kenya has ratified and which may in any way bind Kenya to specific

actions. Where Kenya wishes to withdraw from a treaty, section 17 provides that the relevant

cabinet secretary shall prepare a cabinet memorandum indicating the reasons for such an

intention.

As per the Vienna convention, states are obligated to abide by their international obligations,

Kenya grappled with this issue when president for Sudan Omar Al Bashir who had warrants of

arrest issued against him under the Rome statute attended the promulgation of the 2010

constitution.
The Omar Al Bashir case11 displays the thinking of the high court of Kenya regarding Kenya’s

treaty practice under the constitution of Kenya 2010. An application for a provisional warrant of

arrest against Omar Al Bashir, the then president of Sudan, was filed by the civil society

organizations in Kenya through the Kenya section of the international commission of jurists. An

application that sought orders to compel the minister of state for provincial administration, to

effect the warrant of arrest if Al Bashir set foot in Kenya. This application was based on the fact

that kenya is a part to the Rome statute, and the International crimes Act, 2008was enacted partly

to enable kenya to cooperate with the international criminal court (ICC) established by the Rome

statute in the performance of its functions. Despite the existence of international arrest warrants,

Bashir visited Kenya during the promulgation of the constitution of Kenya 2010 and was not

arrested under the Rome statute. It is presumable that this decision by the executive was based on

the need to maintain good diplomatic relations between Kenya and Sudan.

In allowing the application, the court held that Kenya’s obligation under the Rome statute are

governed by the customary international law which binds all the states. The court further noted

that the duty to prosecute international crimes has developed into jus cogens12 and customary

international law.

Kenya ratified the Rome statute treaty in 200513. This treaty requires member states to cooperate

with the international criminal court of justice in investigation and prosecution of crimes against

humanity14. Kenya has a practice of incorporating treaties through ratification and it takes the

following steps:

11
Kenya section of the international commission of jurists v Attorney General & another (2011)eKLR
12
Blacks law dictionary, 8th edition: a mandatory or peremptory norm of general international law accepted and
recognized by the international community as a norm from which no derogation is permitted.
13
Kenya: Q&A on Kenya and the International Criminal court, January 25, 2011
14
Anne Kiunuhe, The New place of Treaties under Kenyan Laws, August 31, 2010
1) Accreditation of persons/Representatives

The head of state appoints an individual to represent his country in negotiating, adopting and

authenticating a given treaty. He or she is provided with an instrument either by the head of state

or the cabinet secretary for foreign affairs known as the full power. This refers to all powers

conferred by way of a legal document, to a person designated by a competent state or authority,

to represent the state for negotiating, adopting and authenticating the text of a treaty. The person

has a mandate to express the consent of his state to be bound by a treaty or to accomplish any

other act with respect to such treaty.15

2) Negotiation

The state representative negotiates with the other party state(s) and or international

organisation(s) they are mandated to exchange the full power on behalf of their state.

3) Authentication and signing

When the final draft of the treaty is completed, the instrument is signed by the parties present.

Parties confirm its veracity before appending their signatures.

4) Ratification

Parties adopt the agreement in their states through transformation in their parliament. This is the

act of signifying consent to be bound by a treaty and includes acceptance, approval and accession

where the treaty so provides. Subject to the Treaty Making and Ratification Act, where the

government intends to ratify a treaty under section 7 of the Act, the cabinet secretary of the

relevant state department in consultation with the Attorney General has an obligation to submit

to the cabinet the treaty and a memorandum. The memorandum should outline among other
15
Treaty Making and Ratification Act No 45 of 2012, revised edition 2018.
things the objects and subject matter of the treaty, the constitutional implications, and the views

of the public on ratification of the said treaty whether the treaty permits reservations, any

recommendations on reservations and declarations. It is an offense to ratify a treaty without

approval: this is punishable by imprisonment for a term not exceeding 15 years or to a fine not

exceeding twenty million or both.

5) Accession and Adhesion

The treaty receives the presidential ascent, it is signed into law and forms part of national

legislation. Once ratified, it needs not be enacted again for it to have effect.

7) Entry into force

This is also referred to as commencement as the treaty becomes binding on the states that have

signed and ratified it.

8) Registration and Publication

The document or treaty is gazetted to become a public document.

9) Application and enforcement

In practice, the state uses all reasonable measures to introduce the provisions of the treaty to

competent national bodies and ensures they are adhered to. All provisions of the Treaty Making

and Ratification Act shall only apply to treaties entered into after the Act was enacted. 16

Application of treaties

16
Section 3 of the Treaty Making and Ratification Act.
The constitution of Kenya 2010 provides that treaties and conventions that have been ratified

form part of the Kenyan law, even in the absence of any domestic legislation.17 The above

supposition is however not absolute since in the same constitution under article 2(1) the supreme

law of the land is the constitution and any law that is inconsistent with the constitution is invalid

to the extent of inconsistency.18

Courts have made decisions that are seen to be implying that international law is applicable in

Kenya, there is no absolute relationship between the international law and legislation. In the case

of Beatrice Wanjiku v Attorney General & another, the court in that case under paragraph 20

stated that "...the phrase under this constitution as used in article 2(6) neans that the international

conventions and treaties are subordinate to and ought to be in compliance with the constitution. "

Koome J in Re the Matter of Zipporah Wambui Mathara, stated that the provision of article 1.1

of the international covenant on civil and Political Rights ratified on 1st May 1972 formed part

of the Kenyan law. This covenant makes provisions for the promotion and protection of human

rights and recognizes that individuals are entitled to basic freedom to seek ways and means of

bettering themselves.

It has been contended that international law must be ranked at the same level as the constitution

for it to have the same effect and impact on the nation’s constitution and domestic law.

With regard to retrospecrivity, the general principle is that other than for procedural and merely

declaratory pieces of legislation, all others "are prima facie prospective" 19 A statute is not to be

given a retrospective effect unless from its express words or necessary implication

17
John Miles, Arbitration procedures and Practice in Kenya
18
The constitution of Kenya 2010, article 2(4).
19
Samuel Kamau Macharia &another v Kenya commercial Bank & 2 others, civil application no.2 of 2011, supreme
court of Kenya.
retrospectively appears to be the intention of the legislature. With regard to constitution,

however, which often look forward and backwards as they re-engineer their respective countries'

social orders, they may embody retrospective effects. But then even in constitution, it all depends

on the wording of a particular provision. “If words used...are forward looking, and do not contain

even a whiff of retrosepectivity, “then the court should not import it into a provision. On

applying this principle to article 2(6) of the Kenya constitution, the issue then is whether or not it

can be said to have retrospective effect

It is submitted that from the plain language of the article by various scholars that "any treaty or

convention ratified by Kenya shall form part of the law of Kenya,” it can be argued that a

retrospective effect can reasonably implied. A view that is seconded and appears reinforced by

the Ratification of treaties Act. Alternatively, it can be argued that the provision is not express on

that and that past treaties or conventions ratified by Kenya shall form part of the law of Kenya

when legislative domesticated as has been the practice before.

What happens in instances of conflict of laws?

A distinction has to be drawn between the laws in order to avoid a conflict. Within its definition

a conflict of law refers to the difference between laws of two or more jurisdictions applicable to

the resolution of a dispute20. Kenyan courts in its practice have treated international law and

domestic legislation at the same rank by applying rules of construction.21

A conflict between domestic laws and international laws arises when a rule of domestic law

already in force before international agreement becomes binding , and it also arises when a rule

of domestic law becomes binding after an international agreement.

20
Conflict of Law principles
21
NW Orago, The Kenyan constitution and the Hierarchical place of international law in the Domestic legal system.
Domestic courts are deemed to give effect to their domestic law where it is in clear conflict with

customary international law. In the case of Beatrice Wanjiku case, Majanja J stated that,

international law and local statute are both in the constitution hence should be relied as equal in

statute and in case of conflict, it should be resolved by way of ordinary rules of interpretation.

In the case of Diamond Trust Kenya Ltd v Daniel Mwema Mulwa Njagi J observed that in this

country a three tier hierarchy of the law is established, at the apex is the constitution of Kenya,

Next rank as Acts of parliament, followed by subsidiary legislation at the bottom of the pile..

Two years after the decision in the Rono case quite importantly was the High Court Decision in

March 2007 in the case of Peter Anyang' Nyong'o & 10 others v Attorney General. The court

made two very important findings; one, that the Minister for Foreign Affairs had powers to ratify

treaties under the Vienna Convention and two that Treaties are not strictu sensu "laws" in terms

of the constitutional and legislative process set out in the Constitution. This meant that

international law could not be applied in Kenya without it going through a legislative process.

Conclusion

From the cases so far decided, it is clear that determining the correct place of international law in

Kenya has experienced some difficulties. Different courts have at different times reached

different positions. Some have contemplated a very robust role for international law

domestically, whereas others have upheld a status that is hardly different from that of local

statutes. A diversity in opinions that have been likely caused by and attributed to by the

constitutional drafters of the 2010 constitution. By merely stating that international law is a part
of Kenyan law and failing to specify where it falls in the hierarchy of norms, a path of

interpretive confusion seemed to have been opened in the courts.

In many ways, there is a quest to draw directly from the well flourished international human

rights law has been an attempt to transform Kenya’s legal system into a monist one. As I have

discussed earlier, the dualist tradition that Kenya inherited through the common law stood in the

way of direct application of treaties that had not been domesticated.

QUESTION 2

Article 2(5) of the constitution provides that the general rules of international law shall form part

of the law of Kenya while Article 2(6) is to the effect that any treaty or convention ratified by

Kenya shall form part of the law of Kenya under this constitution. This provision creates a major

change in the Kenyan legal framework especially with regard to the domestic application of

international law. As such it raises more questions than answers, for example, what is ratification

of treaties and what is the process of such ratification? Who has the mandate to ratify

international instruments in Kenya? What is the effect of this provision on the Kenyan legal

structure? Does it change Kenya from being a traditional dualist to a monist state? Do the two

provisions have the same effect? That is, whereas Article 2(6) provides for ratified conventions

which have to be domesticated in a traditional dualist system to have full effect of law, Article

2(5) talks about general rules of international law22

22
Mwagiru M : from dualism to monism
The face of international law has been changing. Historically international law largely provided a

mechanism through which states could preserve their sovereignty from external interference.

More recently however, international law has tended towards a more cooperative engagement

among states, through treaties and other international agreements. Consequently, this process has

led to transference of norms by and among states, thereby increasing ranges of transnational

norms among states of the world. This has resulted to, among others, emergence of certain

minimum international standards of conduct expected of individuals and states.

Monism

Monism is one of the theories advanced to explain the relationship between international and

domestic law. Exponents of this theory are referred to as monists. Monists hold that international

law and state law share a common origin namely law23 thus the duo is the two branches of

unified knowledge of law which are applicable to human community in some way or the other.

The broad perspective of the theory of monism is that both international law and municipal law

are facets of the same phenomenon.

Monists also view international and national law as part of a single legal order. Hence

international law is directly applicable in the national legal order. In one way or another there is

no need for any domestic implementing legislation: international law is directly applicable within

national legal systems24. Indeed to monists, international law is superior to national law.

23
I Brownlie, principles of public international law, see also S. O Ayewa “the symmetry between international law
and municipal law: a Nigerian perspective”
24
R. F. Oppong, “Re imaging international law; an examination of recent trends in the reception of international
law into National Legal systems on Africa”
The black’s law dictionary defines constitution as:

1. The fundamental and organic law of a nation or state that establishes the institutions and

apparatus of government, defines the scope of government sovereign powers and guarantees

the individual civil rights.

2. The written instrument embodying this fundamental law together with any formal

amendments.

Constitution does not only give rights but is a machinery as well that imposes obligations. It is

the supreme law of the land. It is not a mere law or Act but an instrument under which laws are

made.

It can thus be seen that the constitution of a country or anybody is its fundamental or organic law

through which all law, authorities or actions derive their legitimacy. It is the general legal

framework that defines, describes and limits exercise of powers and rights, obligations and

modes and limitations thereof.

Monism theory itself has two parts according to Antonio Caessese, one which says that though

the international law and municipal law co-exist and is one and the same, but the municipal laws

principle is put forth as supreme, and is otherwise called monism I and another which says

though IL and ML coexist and are one and the same, but the international law principle are put

forth as supreme is called monism II

In pure monist state, international law does not need to be translated into national law and it is

just incorporated and have effects automatically in national or municipal laws. The act of

ratifying an international treaty immediately incorporates the law into national law.
Articles 2(5) and (6) of the constitution of Kenya 2010 do not entirely transform Kenya into a

monist state as far as applicability of international law in th domestic sphere is concerned.

It must not go unnoticed that the argument on the place of international law and the applicability

of a monist or dualist state as it is dependent on different schools of legal philosophy. Dualist to

a larger extent are seen to argue for a state promulgated laws taking not only a seperate but also

the top tier over international law. It is not surprising that a monist would however consider that

the hierarchy of laws does not necessarily cease upon the highest law of a given land which is the

constitution, but is bound to continue to that system of laws that govern all human beings beyond

territorial boundaries and rise even higher to that which dictates the Concord of the universe 25.

The dualist school of thought.

The dualist doctrine points to the essential difference of international law and municipal law.

Distinctions underlying the two systems into three categories with reference to; their source of

law, the relations they regulate, and the substance of their law, have all been outlined by

oppenheim in his book "International Law: A Treatise".

In relation to the differences in their sources, Oppenheim considers that municipal law derives

from custom grown within the boundaries of the respective state and statutes enacted by law

giving authority. Sources of international law, however are custom grown up within the family of

nations and law making treaties concluded by members of that family.26

In relation to the subjects that each system regulates: international law has its subject’s sovereign

states. It regulates relations between the states, members to that family of nations. Municipal law,

25
Joseph Ndirangu, Dualism, monism Dilemna.
26
Oppenheim, L, International Law: A Treatise.
on the other hand, applies within a state and regulates the relations of its citizens with each

other27 and the relations between the state and the respective individuals.

Thirdly dualist school posits that the two systems of law are different systems of law, each

competent in its own domain28. Consequently, states ought to apply municipal law with no

obligation to make it conform to international law; and, that international law is binding

municipally if the state, through a deliberate process, allows it to do so.

The monist school

Essentially, the monist school of thought posits that both international law and municipal law are

part of one overarching legal system. Since they are part of the same system, and because there is

no competing relationship between them, treaties that a state has ratified are automatically part of

municipal law 6are binding in that domain.

Consequently, monist thinking maintains that municipal law must be consistent with

international law; and that both municipal law and international law must respect the values of

that overarching legal system. In addition, international law and municipal law are ultimately

concerned with individual affairs.

Articles 2(5) and 2(6) of the constitution of Kenya 2010 are considered to be the revolutionary

provisions with regards to application of international law in Kenya. Article 2(5) of the

constitution states that the general rules of international law shall form part of the law of Kenya.

Article 2(6) states that any treaty or convention ratified by Kenya shall form part of the law.

Some states require parliamentary approval before ratification or even signing of a treaty. Others

require legislation to precede ratification. These are however deemed as entirely domestic
27
Brownlie, I, Principles of Public International Law.
28
Mwagiru M, From Dualism to Monism; The structure of Revolution in Kenyas constitutional Treaty Practice.
processes of approval. Normally treaties do not take effect before they are ratified. “Ratification

consists of 1) the execution of an instrument of ratification by the executive and (2) either its

exchange for the instrument of ratification of the other state (bilateral treaty) or it’s lodging with

the depositary (multilateral treaty)."29 There are several reasons for requiring ratification after

adoption and execution of a treaty. Most importantly, the ratification process accords states

opportunities to soberly reflect 6the implications of the treaty before they commit themselves to

be bound by it.

With regards to domestication, apart from monist jurisdictions, the provisions of a treaty do not

form part of the law of a state party or start operating in the municipal jurisdictions upon entry

into force. Treaties, especially those that confer rights or impose obligations on individuals,

become enforceable after they are domesticated into municipal law.

Anomaly before promulgation, a dualist Approach.

The independence constitution did not specify the applicability of international law in Kenya.

Though widely considered that the emerging practice was a dualist application, the ad hoc 30

practice created a state of ambiguity in treaty practice, especially in determining which treaties

were binding on Kenya and those that were not. Some treaties, regardless of not fulfilling the

duslist requirement of transformation were considered binding upon ratification, while on the

other hand, some treaties gained the force of law in Kenya following dualist practice to

completion, that is to say they were first transformed into municipal law.

The ambiguity in practice was reflected in the case of Rono v Rono & another31. In which the

court of appeal considered whether it should apply international law in its consideration of the
29
Aust, A. 2007. Modern Treaty Law and Practice.
30
Mwagiru M ,From Dualism to Monism
31
(2008) KLR 812.
unequal allocation of property among male and female heirs. The court was of the opinion that

despite the traditional view that international obligations were not binding where incorporation

of international law into domestic laws had not occurred, two grounds were considered for

adoption of international law regardless: there is no conflict with existing state laws and secondly

in relation to human rights treaties.

The much earlier case of okunda v R the court looked into a different position where it stated that

where there is a conflict between national laws and international treaty instruments, national laws

takes precedence.

Domestication posed a problem for international law. Domestication meant that for international

law to be applied domestically, it had to first of all be treated in the same manner as municipal

law was treated in the political domain of the state.

What then are the implications of Articles 2(5) and 2(6) of the constitution?

Various scholars have argued and translated articles 2(5) and 2(6) of the 2010 constitution to

mean that Kenya emerges as a monist legal system. Importantly however is the provisions on

treaty practice in the new constitution which clarify the previous tradition which was

characterised by many inconsistencies. It is this state of clarity that has been deemed to have

killed the doctrine of 'domestication' as previously applied in the pre promulgation period.

In order to answer the question on whether Kenya has been transformed to a monist state, it is

important to look at a comparative analysis considering the consequences of both legal systems

in relation to the entirety of the constitutional provisions along with the actions and judicial

interpretation by the courts.

Just to identify the different characteristics on the nature of the two legal systems, the following

characteristics are interrogated to come up with a far reaching result.

In a dualism perspective: international law is binding municipally if the state through a deliberate

process allows it for instance by legislative mechanism whereas in monism, a rule of

international law becomes part of national law without the need for express adoption by the

legislature or local courts.

With regards implementation: in dualism implementation applies the doctrine of transformation

whereas in monism implementation applies the doctrine of incorporation. The dualist/monist

dichotomy plays out distinctly in the doctrines of incorporation and transformation as modes of

domestication of international law into municipal law. According to the doctrine of

incorporation, international law is regarded as ipso facto part of and us automatically

incorporated into municipal law and may be applied as such by the municipal courts; an

otherwise monist approach. The doctrine of transformation on the other hand expresses the

opposite view that 'international law is not ipso facto part of municipal law. A rule of

international law will form part of municipal law only after. Transformation into municipal law

by means of a statute or Act of parliament.'32 This is the dualist approach

In a dualist system, states apply municipal law with no obligation to make it conform to

international law whereas in a monist system, municipal law must be consistent with

international law and both must respect the values of the overarching legal system.

As drawn from the above characteristic differences, when analysed with various constitutional

provisions, an attempt to determine whether there has been a transformation towards the monist

approach can be achieved.

32
Abdul Ghafur Hamid. " judicial Application of International Law in Malaysia: a critical analysis "
Article 2(5) of the constitution provides that the general rules of international law shall form part

of the law of Kenya.

International law, which comprises of fundamental human rights of humanitarian law,

international customary law binding on all states. On the other hand, treaties are binding on a

state upon ratification33. The jus cogens make international customary law non derogable since it

is binding on all state for example the right to a fair hearing, legality among others.

In the case of Beatrice Wanjiku &another v Attorney General & another the court in that case at

paragraph 17 stated that before the promulgation of the constitution, Kenya took a dualist

approach to the application of international law. A treaty or international convention which

Kenya had ratified would only apply nationally if parliament domesticated the particular treaty

or convention. The constitution of Kenya and in particular articles 2(5) and 2(6) gave a new

meaning to the relationship between international law and international instruments and national

law.

Under the doctrine of seperation of powers, the legislative function vest with the parliament. This

is accorded by article 94(1) of the Kenya constitution of 2010. It asserts that; no person or body

other than parliament, has the power to make provision having the force of law in Kenya except

under authority conferred by this constitution or by legislation. Traditionally, the treaty making

power resides with the executive. This is because under international law, it is executive arm of

government that makes treaties.

The traditional dualist view ,which reserves the treaty making function for the executive arms of

government with the legislature only being involved in enacting implementing legislation, has

33
Treaty Making and Ratification Act no 45 of 2012.
also increasingly been influenced by the burgeoning human rights. The need for parliamentary

involvement in treaty ratification process is both constitutional and historical.

Article 2(6) of the constitution of Kenya 2010 introduced a fundamental change in approach in

the domestication of treaty provisions from dualism to a neither pure dualism nor pure monism.

This provision of the constitution incorporates treaties that Kenya ratifies into Kenyan law. By

the enactment of the Treaty making and Ratification Act requires parliamentary approval of all

treaties Kenya enters into prior to their ratification. This considered in the light of the above

analysis makes it clear that Kenya is neither pure monist nor a pure dualist. Kenya can be

considered to follow a hybrid system, just like the United States of America and South Africa

whose constitutions require parliamentary approval for treaties followed by domesticating

legislation before treaties form part of their municipal legal systems.

A hybrid system embraces both aspects of dualism and monism.

The doctrine of monism under article 2(5) and (6) of the constitution of Kenya would seem to

gain support when read along with the second part of article 94(5) of the constitution. Article

94(5) of the constitution vests the power to make Kenyan law with the parliament of Kenya, but

with the exception of situations where the person or body making such law is authorized by the

constitution or legislation. Such authorisations may be treated and read in articles 2(5) and 2(6).

However when the first part of article 94(5) is which provides for only parliament as the

legislative body in Kenya, when read together with article 94(1) and article 1 of the constitution,

then it would appear that the parliament takes supremacy as it is the body conferred with the

sovereign legislative power from the people of Kenya. A position echoed by Majanja J in the

Case of Beatrice Wanjiku.

In the case of Re the matter of Zipporah Wambui Mathara 34 the court observed that the

international convention on civil and Political Rights, ratified on 1st May 1972, is part of kenyan

law by virtue of article 2(6) of the constitution and held that the incarceration of one for failure to

pay civil debts goes against article 11 of ICCPR.35

The court in that matter placed a higher regard for the provsions of international law( under

ICCPR) over domestic statutory provisions as per the Civil Procedure Act, cap 2136, which

allows the committal of a judgement debtor to civil jail, as one of the powers of the court to

enforce execution. Justice Njagi however held a contrary view in the case of Diamond Trust

Kenya Ltd v Daniel Mwema Mulwa37 in which similar facts concerning imprisonment of a

judgement debtor and evaluation of the conflict between Civil Procedure Act and the ICCPR was

considered. Justice Njagi referred to the issue of hierarchy of laws which he considered to be

three and at the apex was the constitution as the supreme law of the land, followed by Acts of

parliament then subsidiary legislation. The learned judge justified that the ICCPR cannot rank

pari passu with the constitution. And even if it ranks in parity with an Act of parliament, "it

cannot oust application of section 40 of the civil Procedure Act. Nor for that matter, can it render

section 40 unconstitutional. "

In Re Mohamud Mohamed Mashi alias Dhodu and eight others38 the only issue to be

determined was “whether the Chief Magistrate Court had jurisdiction to try the charges against

the applicants in this case and also over the Applicants. The learned judge held that the Kenyan

courts had no jurisdiction to try the accused persons he went ahead to declare the applicants

34
Bankruptcy cause No 19 of 2010.
35
Article 11 of the International Covenant on Civil and Political Rights states: No one shall be imprisoned merely on
the ground of inability to fulfill a contractual obligation.
36
Section 38(d) of the civil Procedure Act, cap 21 laws of Kenya; section 40 of the civil procedure Act.
37
HCCC No.70 of 2002
38
In Re Mohamud Mohamed Mashi alias Dhodu and eight others Misc Application no. 434 of 2009
wards of the court requiring special care to ensure that they were not re- arrested and charged

with being in the country illegally. The judge stated that, the applicants could not be re-arrested

and charged under sections 369 and 371 of the Merchant Shipping Act 2009. This is because

Section 69 of the Penal Code was repealed by Section 454 of the new Merchant Shipping Act

2009 (MSA 2009) and no provision for continuity of the cases commenced under the repealed

Section 69 was made.

This judgment has been criticized on the grounds that it ignored the express provisions of the

constitution on application of International law and Kenya’s obligation under International law to

prosecute pirates. The critics however did not take into consideration the issues that were raised

by the case. The judge stated that for the purposes of offences created under the penal code,

jurisdiction of the court extends to every place within Kenya, including- territorial waters and not

the high seas as provided under Section 5 of the Penal Code. Section 69 of the Penal Code only

created an offence but did not provide jurisdiction for courts to prosecute piracy. The judge

therefore found Section 5 paramount to Section 69. The contradiction in the two provisions in

this case could not be ignored. The court could not then simply import provisions of international

law and prosecute the applicants without considering matters of law brought before it.

Ibrahim Sangor Osman & 1,122 others v The Minister of State for Provincial Administration

and Internal Security & 10 others39

The petitioners were forcefully evicted from their homes in Medina location in Garissa thus

rendered homeless in December 2010. Their personal property, building materials and household

goods were destroyed during the eviction by state agents to pave way for the construction of a

road. The petitioners were evicted without prior notice, and there was no any consultation before

39
[2011] Constitutional Petition No. 2 of 2011, High Court at Embu
eviction. The residents were not even provided with alternative land or housing after the

unlawful eviction. The residents’ relocated to areas where access to essential services was

compromised with no access to free and compulsory basic education for children. They thus filed

a petition seeking several declarations and orders, among them, that the eviction were a violation

of their right. It was held that the eviction was illegal as pursuant to international instruments

ratified by Kenya, it ought to have been carried after all other alternatives to eviction had been

explored in consultation with the affected persons The court made an order compelling the

respondents to return the petitioners to the subject land, reconstruct reasonable residence and

alternative accommodation for them, which would include all amenities and facilities subsisting

at the time of the eviction and demolitions. The court further ordered a permanent injunction

restraining the respondents from future evictions and demolitions unless the law was followed.

Article 7(2) of the Vienna convention on the Law of Treaties of 1969 places the power to

represent one's state for the purpose of expressing consent to be bound by a treaty upon

ratification, to the executive. The end goal or effect is that they become part of Kenyan law. This

presupposes a conflict in roles between the parliament and executive in implementing

international law. The Treaty Making and Ratification Act has provisions that portray the

provisions of article 7(2) of the Vienna convention on the Law of Treaties granting powers upon

the executive arm of government. The Act has however on the other hand provides for a

consolidated role of the parliament in its legislative authority.

From the considerations established especially by section 8 of the Act, parliament plays an

integral role in the determination of whether international law, subscribed to through ratification

of treaties, shall be binding as law in Kenya. Even though once ratified, the obligations raised by
treaty are binding through its process, parliament will consider and ensure consistency of the

upcoming international obligations to the circumstances in the domestic system as well as the

prevailing law. Despite the removal of the requirement to domesticate international law, the

processes of consideration and approval with or without reservations nonetheless places

international law under check by the domestic legal system. This has been seen to limit the

extent of automatic incorporation of international law, and application of international law into

Kenyan jurisdiction as proponents of monist system may read as provided for in article 2(6) of

the 2010 constitution.

This role of parliament analysed above to a larger extent further questions the primacy of

international law as argued by the monist doctrine. It has raised doubt to the place of

international law above national laws as well as whether international law holds the same ground

as national legislation. Basically the biggest reason for subjecting treaty making process to

deliberation of parliament is to make sure that parliament assents to terms that conform to

national circumstances and assent with reservations or reject treaties that do not.

The treaty making and Ratification Act has provide for limitations as presented by the courts in

their decisions as well regarding international law application in the domestic jurisdiction,

despite this, the constitution ensures adherence and consideration of international law. As already

discussed previously, the general application of Article 2(5) and 2(6) of the constitution is to

specify in addition to clarification the incorporation of international law as part of Kenyan law. It

has been argued that their inclusion into the constitution especially by virtue of the supremacy

clause of the constitution, as well as exclusion for other sources of law ,a role of international

law in domestic jurisprudence is set apart in that institution. In addition, the provision of the

place of international law extends variously throughout the constitution with certain
requirements placed on both the legislation as well as state authorities in the course of

implementation of international norms.

Article 21(4) of the constitution, requires enactment of legislation to fulfil international

obligations in respect of human rights and fundamental freedoms. There are reasons for this

provision. First is to safeguard the application of human rights guarantees as per treaty

obligations by setting a point of reference for treaty execution in terms of whether a treaty may

be self executing or non self executing. That article of the constitution provides for a common

standard for application of treaties guaranteeing human rights, it ensures that the state shall take

all the steps to ensure their implementation regardless of whether the treaty provisions may be

non self executing.40

Conclusion

The constitution of Kenya 2010 entrenches and consolidates in a clarified manner the

relationship between international law in Kenya, it removes the need for domestication as was

enshrined in the pre August status quo. By a great extent, it brings out the incorporation of

international law into the national legal system by the specific provisions of article 2(5) and 2(6)

which demonstrates the position of international law as part of the Kenyan law.

The cconstitution limits the incorporation of international law by ascertaining it's supremacy

over all laws of the land and preserving the sovereignty of the people and their power to enact

binding laws through parliament. This role preserved for parliament is extended through the

treaty making and ratification Act which ensures that a decisive role be played by parliament

40
The Kenya National Commission on Human Rights, Making the Bill of Rights operational: policy, Legal and
Administrative Priorities and Considerations (2011)
with regard to the Executive's conduct or duty in incorporating international law into Kenya

through ratification of treaties.

Taking into consideration all the analysis in this paper, in a contextual manner of interprating all

other laws in a purposive approach manner, the question regarding transformation of Kenya into

a monist state by virtue of article 2(6) cannot be a satisfactory conclusion, it seems more likely

that Kenya adopts the third school of thought which is a theory of coordination. That is to say

Kenya is a hybrid system that is neither pure dualist nor pure monist.