Home | Off the Press | News for youth | Media | Get In Touch |

Wednesday, July 24, 2013

 “Article 2 (5) and Article 2 (6) of the Constitution of Kenya do not entirely transform Kenya into a monist state as far as applicability of international law in the domestic sphere is concerned.” (Anonymous)  Paper by Kate Kiama


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.


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.
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

No comments:

Post a Comment