The United Nations International Law Fellowship Programme

Applications for the 2016 International Law Fellowship Programme are currently being accepted.

The United Nations International Law Fellowship Programme is organized by the Codification Division of the United Nations Office of Legal Affairs. The Fellowship Programme provides high-quality training by prominent international law scholars and practitioners on a broad range of core subjects of international law. In addition, the interactive nature of the training allows the participants to share experiences and exchange ideas, which promotes greater understanding and cooperation on contemporary issues of international law.

The Fellowship Programme is intended to enable qualified professionals, in particular government officials and teachers of international law from developing countries and countries with emerging economies, to deepen their knowledge of international law and of the legal work of the United Nations and its associated bodies.

The Fellowship Programme accommodates up to 21 participants.

The Program
The Fellowship Programme consists of an annual six-week summer course at the Peace Palace in The Hague, the Netherlands. The participants attend lectures and seminars in international law organized by the Codification Division as well as the public international law session at The Hague Academy of International Law.

The lectures and seminars organized by the Codification Division are given by prominent international law scholars and practitioners from different regions and legal systems.

Eligibility

• Candidate must have a legal background and professional experience in the field of formal law
• Candidates must be in good health and certify that able to attend the entire course period
• Candidates must be from developing countries with emerging economies
• Fluency in spoken and written English or French

Deadline: December 1, 2015

For More Information And To Apply Visit Here

Kituo cha Sheria- Legal Vacancy

                                   

 VACANCY ANNOUNCEMENT

LEGAL/PROGRAM OFFICER (Ref: KCS/LPO-NRB/APP)

Kituo Cha Sheria (KITUO) is a Non Governmental Organization (NGO) whose mission is to empower the poor and marginalized people to effectively access justice and realize their human and people’s rights. This is done through advocacy, networking, lobbying, legal aid and education, legal representation and research.

KITUO seeks to recruit a qualified, energetic, dynamic, result oriented and capable person to fill the Program/Legal Officer for the Legal Aid and Education Program at the Head Office in Nairobi. Responsible to the Coordinator Legal Aid and Education, he/she will be responsible for litigation and programme work.

Key Duties and Responsibilities

·        Provide strategic direction to other lawyers and officers

·        Provide legal advice, and court representation

·        Conduct research that enables KITUO to built evidence base that informs litigation strategies.

·        Legal awareness and education to clients and advocates in matters legal and human rights, housing, land, labour and succession.

·        Provide financial coordination and ensure responsible and accountable use of donor funds on programme work.

·        Responsible for counselling clients and sensitising communities on building a factual basis for their cases.

·         Helping communities to develop capacity to self advocate and lobby for legal protection

·        Programme work and report writing.

·        Coach, mentor and nurture skill and potential of upcoming lawyers.

Minimum Qualifications:

·        Bachelor’s degree in Law or equivalent qualification.

·        Must be an Advocate of the High Court of Kenya with a current practising certificate

·        At least 3 years professional working experience in civil and criminal litigation, with a reputable human rights organization or law firm.

·        Excellent written and verbal skills in English and Kiswahili are mandatory

·        Good working knowledge of modern information, communication and technology systems

·        Knowledge in advocacy and negotiation

Applications indicating the job reference number above, including a detailed curriculum vitae with at least three referees and copies of relevant testimonials, day telephone number, email address and an indication of present and expected remuneration should be addressed to;

THE EXECUTIVE DIRECTOR

KITUO CHA SHERIA

(CENTRE FOR LEGAL EMPOWERMENT)

P. O. Box 7483 - 00300

Ronald Ngala

Nairobi

E-mail: hr@kituochasheria.or.ke

The application must reach us on or before 13^th September 2013. Only short-listed applicants will be contacted. Details of the job applications can be obtained from our website www.kituochasheria.or.ke ->opportunities ->vacancies

The Genesis of the Kenyan Nation State.

By Kate Kiama

The terms Nation, State, Country and Nation-State have been used to loosely refer to the Political, Economic, Social and Cultural actors in the International System. It would be judicious to embark on a brief definition of these terms as a starting point to this paper.

A Country[1] is commonly viewed as occurring when a group of people with their own customs and beliefs permanently occupy a territory[2]. A country can be a nation, state, province, region, city, community or commonwealth.[3] To be a Country, autonomy, independence or sovereignty is not a prerequisites. This assertion is best illustrated by the Kurds who have their own identity and traditions and form the province of Kurdistan under the administration of Iraq.

A State[4] is a country that either forms part of another or is independent. Max Weber[5] describes the State as a compulsory political organization with a centralized government that maintains a monopoly of the legitimate use of force within a certain territory.

A Nation has been defined as a culturally homogenous group of people larger than a single tribe or community who share a common language, institution, religion and historical experience.

The Nation State is therefore a  state that self-identifies as deriving its political legitimacy from serving as a sovereign entity for a nation as a sovereign territorial unit. A good example of present day Nation States may include France, Egypt and Germany.

In comparison therefore a Multinational State is a sovereign state which is viewed as comprising two or more nations; examples of which may include present day Canada and Belgium.

In the early sixteen and seventeenth centuries, Britain as with many other European allies embarked on empire building. The original expansion of the British interests overseas was essentially undertaken by private commercial companies. Where a territory was taken over by conquest, it became the property of the crown.[6] Legal authority over such territories vested in the Crown and Political authority lay in the Privy Council. It is of course not my assertion that prior to the British presence in these territories either in the form of the Imperial British East African Company[7] or through the missionaries or finally through the colonialists that these territories were neither inhabited nor sovereign. There is evidence of early human life and in fact the greater East African Region has been widely acknowledged as being the cradle of mankind.[8] The territory could be argued on the one hand to have been sovereign.

Sovereignty within the notion of a state may be analysed as meaning either the supreme legal authority within a state or the supreme political authority[9] within a state. This argument could be further supported by Thomas Hobbes[10] extreme version on the social contract theory, arguing that man is by nature incapable of regulating his life in peace and harmony with his fellow man. Hobbes’s view of a man in a society lacking a restraining all-powerful sovereign was inherently pessimistic an attitude often encapsulated in the often quoted phrase that ‘life is solitary, poor, nasty, and brutish and short. ‘Hobbes argued for there to be civil order, it was paramount for each man to surrender to his state his own sovereignty in exchange for security. Such surrender was only revocable in the event that this trust was broken and a war broke out.

According to Jean-Jacques Rousseau[11], the citizen enters into a ‘contract’ with the state surrendering individual rights in exchange for state protection. The state according to this scholar is vested with the general good will of the people and thus becomes the agent and ruler of the people in their own name. Man therefore comes together not due to their inherent violent natural state but rather for necessity and through participation in the decision making process which produces more often than not a democratic system of governance. It could therefore be persuasively argued that indeed prior to the colonialist arrival in Kenya; there were inhabitants whose evidence can be scientifically proven; and that these people were clustered in several ethnic groupings. It can further be argued that based on the sole fact that these tribes had some form of leadership and governance though informal, they were indeed sovereign based on the social contract theory and that there sovereignty lied in fact with them and that the extent of their sovereignty was absolute and inalienable.

If this is the case therefore, it would be possible to be inclined to the school of thought that seems to suggest that indeed Kenya was a Nation State even before June 15^th 1895[12].

In the alternative, it could also be argued that if indeed there were inhabitants, they were considered primitive natives and incapable of a structure system of governance such as the one demonstrated by the Sultan of Zanzibar[13]. It could be that the colonialists had their own  biases that they came with  that seem to explain why they willingly  acknowledged the  monarchical form of leadership used in Zanzibar which was almost the  same form of governance used in several European States at the time. It could also be argued that since there was only one identifiable leadership in the Sultanate of Zanzibar it was easier for the British and the Germany to recognize this form of  sovereignty and as such negotiate their terms and agreements with the Oman. If this was the case, it therefore follows that the sovereignty of the upper regions of present day Kenya at the time would prove very problematic especially because of the different leadership present in each ethic group. This multiple leadership structure would prove problematic and questionable  and it could thus be  inferred that the territory was not sovereign and subsequently  the argument of nation state does not hold. It would be interesting to discover how this theory can be defended especially in the case of ethnic groups who lived so closely to each other. It would be both theoretically and practically difficult to exactly pin point to whom their allegiance laid and in many instances the extent of their territory. In such circumstances intermarrying was rampant and hence the population of each state could never rely be defined. These among many other practical and geographical disputes further dents the nation state theory.

It is trite law that the process of creating new states is both a mixture of fact and law, involving the establishment of particular factual conditions and compliance with relevant rules. The accepted criteria of statehood were laid down in the Montevideo Convention (1933[14]), which provided for several requirements to be fulfilled prior to a declaration of statehood. The criteria of the convention are stipulated in Article 1: The state as a person of international law should possess the following qualifications;

·        a permanent population,

·        a defined territory,

·        government and

·        the capacity to entire into relations with other States

Article 3[15] provides, ‘The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.’…

Article 6[16] states, ‘The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.’

There is a huge ongoing debate whether or not satisfying the Montevideo criteria alone is enough to be a State or if recognition is also necessary. The two main doctrinal views are known as the declaratory[17] and constitutive[18] theories of Statehood.

Notwithstanding that the Montevideo Convention came into force in the year 1933, the assertion that the Nation State of Kenya came into being in June 15^th 1895 still faces further obstacles. Key among them is Article 3 and 6 of the convention. It could be argued that the fact that the British and German governments failed to recognize the sovereignty as they did the ten mile strip of what is now present day Zanzibar further proves problematic for the Nation State line of reasoning. This is because it seems that the colonialist were not being selective on which states to recognize as being sovereign but rather they seemed to have  had almost no choice but to recognize some territories if they satisfied  most of the common law criteria of statehood. This theory could further be questioned especially in regards to the ability of the Kenyan nation states to relate with each other. Most of the encounters with other such states were usually not fostered for economic or political interests but rather the   relations were almost always through conflict and conquest.

In conclusions, it consequently appears that the debate on whether or not Kenya was a nation state or became a nation state in 1895 depends on the spectacles and stand point of the historian, jurist and politician. As a jurisconsult after reviewing the law and applying it I have come to the    considered conclusion  that Kenya was not  a nation state  on June 15^th 1895.

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[1] Concise Oxford English Dictionary (9^th ed.). Oxford University Press 1995.

[2] In a legal context, the term territory usually denotes a geographical area that has been acquired by a particular country but has not been recognized as a full participant in that country's affairs.

[3] Quebec is considered to be a country despite the fact that it is a province of modern day Canada. Hawaii, Puerto Rico and the Virgin Islands are also considered to be countries. Puerto Rico, and the Northern Mariana Islands, are both commonwealths of the United States of America.

[4]http://en.wikipedia.org/wiki/State_(polity)

[5] Maximilian Karl Emil "Max" Weber (German: 21 April 1864 – 14 June 1920) was a German sociologist, philosopher, and political economist whose ideas influenced social theory, social research, and the discipline of sociology itself. Weber is often cited, with Émile Durkheim and Karl Marx, as one of the three founding architects of sociology

[6] Calvin’s case [1572] Eng.R. 64, (1572–1616) 7 Co.Rep. 1a, 77 E.R. 377  

[7] The Imperial British East Africa Company (IBEAC) was the administrator of British East Africa, which was the forerunner of the East Africa Protectorate, later Kenya. The IBEAC was a commercial association founded to develop African trade in the areas controlled by the British colonial power. 

[8] Fossils found in East Africa suggest that primates roamed the area more than 20 million years ago. During excavations at Lake Turkana in 1984, paleoanthropologist Richard Leakey assisted by Kamoya Kimeu discovered the Turkana boy, a 1.6 million year old fossil belonging to Homo erectus

[9] AV Dicey

[10] The Leviathan 1651

[11] The Social Contract and Discourse 176

[12] Kenya became a protectorate under the British Rule.

[13] In 1698, Zanzibar became part of the overseas holdings of Oman after Saif bin Sultan, the Imam of Oman, defeated the Portuguese in Mombasa. 

[14] This treaty was signed at the International Conference of American States in Montevideo, Uruguay on December 26, 1933. It entered into force on December 26, 1934. The treaty discusses the definition and rights of statehood.

[15] Montevideo Convention on the Rights and Duties of States (1933)

[16] Ibid

[17] provides that the moment in which an entity satisfies all the conditions set out in the Montevideo convention the entity is a State. This theory is close in line with the convention itself and the pronouncements of Articles 3 and 6.

[18] Sets out that it is the recognition of an entity as a State that makes it so.

 “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

Introduction.

The Constitution of Kenya 2010 was promulgated on August 27^th 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.

 

 

 

 

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[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