Introduction.
The Constitution
of Kenya 2010 was promulgated on August 27th 2010. The country’s new
supreme law, which was endorsed by an overwhelming majority[1], is the foundation for ushering in
the changes that Kenyans have been clamoring for decades, including
restructuring of governance and expansion of the Bill of Rights. This paper
will attempt to examine the implications of Article
2 (5) and 2 (6) of the
Constitution which moves Kenya from a dualist to a monist State. The paper
finds that Article 2 (5) and (6) seeks to ensure that Kenyans enjoy
greater protection of the international treaties and conventions ratified by
the State and as such makes her a monist
state to some questionable degree however.
Definitions.
Monism
and dualism are terms used to describe the two approaches that states take in
applying international law in their domestic systems. In states with a monist
legal system, international law does not need to be translated into national
law; the act of ratifying an international treaty immediately incorporates that
international law into national law. In Germany for instance, treaties have the
same force as domestic legislation[2]. For states with a dualist
system, such as Britain, international law is distinct and separate from
national law and is not directly applicable domestically[3]. It must be translated into
national legislation before it can be applied by the national courts or
implemented by the executive.
Historical developments;
a move from dualism.
Under
the 1963 Constitution, Kenya was a
dualist State; any treaty or convention ratified by the country did not have
the force of law unless it was domesticated by passage of appropriate
legislation to effectuate the same.
Article 2 (5) of the Constitution of Kenya 2010 states that ‘[T]he
general rules of international law shall form part of the law of Kenya.’ This
means that international law, including customary international law, is a
source of law in Kenya. Article 2 (6)
further states that ‘[A]ny treaty or convention ratified by Kenya shall form
part of the law of Kenya under this Constitution.’ It seems that by virtue of these
provisions, Kenya is effectively converted from a dualist into a monist State
as treaties and conventions do not need to be domesticated for them to have the
full force of law in present day Kenya.
It
could also be argued that the said provisions do not convert Kenya into a
strictly monist State because of others constitutional provisions. These
includes Article 2 (4) which is to
the upshot that ‘[A]ny law, including customary law, that is inconsistent with
this Constitution is void to the extent of the inconsistency, and any act or
omission in contravention of this Constitution is invalid; and Article 21(4) of the same Constitution which
provides that ‘[T]he
State shall enact and implement legislation to fulfill its international
obligations in respect of human rights and fundamental freedoms.’ It is my considered
opinion that the effect of distinguishing international law in the form of
treaties or conventions as provided for in Article
2 (6) and other international law sources as demonstrated by Article 2 (4) to all intents and
purposes makes Kenya a partly monist
and partly dualist State. The same can be further buttressed by the effect of Article 21 (4) which gives legitimacy to
international law by domesticating the same. In a purely monist state, a judge
is in essence empowered to declare that a domestic law that is not in
conformity with international law is null and void. Kenyan Judges do not seem
to have this authority hence the assertion that we remain partly dualist and yet
now show signs of a partly monist state due to the various characteristics we
posses in our application of international law presently.
Monism
versus Dualism
In
general, international law standards should ideally operate directly and
immediately within the domestic legal system of each state party. However, not
all treaties can become immediately effective even in purely monist states. A
distinction exists between ‘self-executing’ and ‘non-self-executing’ treaties.
The former[4]
are able to operate automatically within the domestic field without the need
for any legislation, while the latter[5]
require enabling statutes to be passed before they can function inside the
country and bind the courts. It therefore gives the impression that no state
can practically be a purely monist state as some international law requires all
states without distinction to enact enabling statutes to incorporate the provisions
of the international law.
The
sovereignty of the Kenyan Constitution still remains unimpaired in light of it
being a partly monist and partly dualist state notwithstanding Articles 7(2) of the
Vienna Convention on the Law of Treaties
which recognizes that Heads of State, Heads of Government and Ministers for
Foreign Affairs as being able to represent their states for the purpose of
performing all acts relating to the conclusion of a treaty without having to
produce full powers. Parliament is entrusted with the duty and power to give
effect to ratified treaties through enactment of acts of parliament. Article 94 (5) of the Constitution
provides that ‘[N]o 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.’ This article enforces the notion of
separation of powers between the executive and legislative arm of government.
It also offers a control and scrutiny measure of ratified treaties.
It
can be seen that the Courts are presently taking the approach of incorporating
international law into our laws as can well be demonstrated by the recent
decision in the matter of Ziporrah
Wambui Mathara[6].
The Court
observed that the ICCPR is now part of Kenyan law by virtue of Article 2 (6) of the Constitution and
held that incarceration of one for failure to pay a civil debt goes against Article 11 of the ICCPR. In this instance, the Court chose to uphold the ICCPR
instead of the Civil Procedure Act, Cap.
21, which allows as one of the means of enforcing a judgment, the committal
of the judgment debtor to civil jail. The force of the case demonstrates the
monist nature of the present day Kenya. Our courts are now intent to have
uniform jurisprudential application of international law and are seen to
nowadays take judicial notice of Principle
7 and 8 of the Bangalore principles on domestic application of human rights
norms which
provides that ‘[W]here national law is clear and inconsistent with the
international obligations of the State concerned in common law countries the
national court is obliged to give effect to international law’.
It
is of paramount importance to note that traditionally,
dualism is known to be a common law doctrine whereas monism is recognized as a civil
law idea. Kenya being a common law country, it was easy to justify in the previous
constitutional dispensation why it was regarded as a dualist state. This is best
illustrated by the Section 3 (1) and (2)
of the Judicature Act[7]
which lists the sources of law in Kenya. In this list international law is
conspicuously missing. The implication of this was that, one would not go to a
court of law in Kenya before 2010 and
purport to rely on a provision of an international treaty or convention, to
seek redress on the grounds that his/her
rights under these covenants have been violated and ask the court to
adjudicate the matter based on that. Although Kenya has ratified some of these
instruments, the courts were still then faced with such problems as regarding
the applicability of international law in the absence of implementing legislation.
In the decided case of Mary Rono versus Jane Rono[8]
the Court of Appeal was faced with the question of determining inter alia,
whether international customary and treaty law could be applied in the absence
of domesticating legislation. The court held that, ‘even though Kenya subscribe to the common law view that international
law is only part of domestic law where it has been specifically incorporated,
current thinking on the common law theory is that both international customary
and treaty law can be applied by a state courts where there is no conflict with
existing state law, even in the absence of implementing legislation.’ Due
to the new invention of interpretation of the law then, the case achieved a
land mark status and created a precedent that brought a little relief to
litigants whose solutions would only be found in the international instruments.
This decision however no matter its consequences did not change Kenya from
being a dualist state at that point in time. In the case of Peter Anyang'
Nyong'o & 10 others v Attorney General[9],
also heard and determined before the 2010
Constitution, The High 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. This reaffirmed the Kenyan
traditional way of treating international law within its legal structure both in
terms of the adoption of international law into the Kenya’s legal system as
well as the application and the effect of such instruments within the domestic
sphere.
Conclusion.
Article 2 (5)
and Article 2 (6) of the Constitution of Kenya 2010 granted does not
entirely transform Kenya into a monist state as far as applicability of
international law in the domestic sphere is concerned; but there has undeniably
been a shift from a purely dualist state
to a partly monist and partly dualist state.
This
can be verified by the recent judicial atmosphere in acknowledging the force of
international law especially in giving redress to litigants whose remedies can
only be found from effecting international instruments. The judiciary still
maintains that international law is subordinate to domestic legislation as was
stated quite recently by Justice Majanja in the decided case of Beatrice Wanjiku & Another versus the
Attorney-General & Another 2012[10];
which further demonstrates the dualist nature of the State’s relation with
international law.
The Treaty making and Ratification Act
2012
confirms that Kenya still maintains the discretion to implement international
laws through parliament ,offering Kenyans the comfort that international norms and practices that
are contrary to the peoples beliefs and customs can be avoided through parliamentary
intervention through Article 94 (5) of
the Constitution. The Act was passed in order to give life to the
provisions of Article 2 (6) of the Constitution and aims to give the procedure to
domesticate treaties and the ratification of the same. It is therefore my
conclusion that Kenya post 2010 is not a fully dualist state; yet retains a
considerable degree of dualism; and the
state now also displays some forms of
monism, hence the notion that we are neither purely dualist nor purely monist
but enjoy a mixture of the two systems. This
dichotomy offers Kenyans better protection of international rights and
obligations yet also retains the Constitutional Supremacy and the purview to
opt out from international customs that the Kenyan people are not ready and
willing to embrace as yet.
[1] The
Constitution was ratified by over 67 percent of the total votes cast,
http://www.iiec.or.ke/index.
php/August-2010/final-referendum-results-are-gazetted.html
[2] Internationale Handelsgesellschaft mbH v EVST (1972) The ECJ found
that even a fundamental provision in the written constitution of member states
could not be invoked to challenge the supremacy of EC law.
[3] Lord Denning made it clear in
the case of McWhirter v Attorney-General
(1972) that without the ECA 1972,
EC Treaty and Community legislation would have been binding on the UK in the
international arena but would have no effect internally. Section 2 and 3 of the ECA 1972 help ensure that the Treaty
provisions have been domesticated in the UK local Courts to ensure that the
Treaty provisions can now be binding on the UK.
[4] For instance the provision in Article
2 of the ICCPR obliging all state parties to “legislate where
necessary to give effect to the rights recognized in the Covenant…”
[5] For instance, the Convention on the Prevention and
Punishment of the Crime of Genocide of 1948
requires states pass legislation in order to make the acts criminalized in the
Convention illegal under its domestic law.
[6] Bankruptcy
Cause No.19 of 2010, (unreported).
[7] The Judicature Act Cap 8 Laws Of Kenya; The section lists the
sources of law in Kenya
[8] Rono v Rono (2005) AHRLR107 (KeCA 2005).
[9] [2007]eKLR
[10] [2012]eKLR
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