African human rights law journal



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AFRICAN HUMAN RIGHTS LAW JOURNAL

(2013) 13 AHRLJ 415-440

The 2010 Kenyan Constitution and the hierarchical place of international law in the Kenyan domestic legal system: A comparative perspective


Nicholas Wasonga Orago*

Doctoral Researcher, Socio-Economic Rights Project, Community Law Centre, University of the Western Cape, South Africa



Summary

The prominent use of international human rights law in a states domestic legal system depends on the hierarchical place occupied by international law in general, and international human rights law in particular, among the sources of law in that particular legal system. Two systems of receipt of international law in the domestic legal systems have been used by different states: monism, which looks to directly incorporate ratified international law treaties in a states domestic legal system; and dualism, which entails the transformation of international law into the domestic legal system through the domestication of ratified international law treaties by means of the enactment of parliamentary legislation. Kenya, as a Commonwealth country, has always primarily followed a dualist approach which requires that domesticating legislation be enacted by parliament for ratified international law treaties to have application in the domestic legal system. However, with the promulgation of the new Constitution in August 2010, international law has been given a more prominent role in the domestic legal system through the inclusion in the Constitution of a provision directly incorporating ratified treaty law into the Kenyan legal system as a legitimate source of law. This article is primarily focused on analysing the hierarchical place of international law, specifically international human rights treaty law, in the Kenyan domestic

* LLB (Hons) (Nairobi), LLM (Human Rights and Democratisation in Africa) (Pretoria), LLD (Western Cape); nicholasorago@gmail.com. The kind financial support of the University of the Western Cape Research Department is acknowledged.





legal system in the context of the new constitutional dispensation. It recommends that in order for international human rights law to have a prominent place in the governance of the country, article 2(6) of the Constitution should be interpreted progressively so as to give international human rights law norms an infra-constitutional but a supra-legal status in the domestic legal system. In this way, international human rights law will act as a bulwark against recession to totalitarian rule, as well as safeguard the democratic and fundamental rights protection gains that were won in the struggle for constitutional change.
1 Introduction
International law, specifically international human rights law, has had an unenviable history in the Kenyan domestic legal system.1 The 1963

Independence Constitution did not provide for its direct application in the Kenyan legal system, with Kenya, similarly to other common law countries, adopting a dualist approach to international law.2 With the

adoption of the dualist approach, Kenya espoused the doctrine of transformation, which envisioned that international law could only be applicable in the domestic legal system if it had been domesticated by

parliamentary legislation.3 The doctrine of transformation meant that,

hierarchically speaking, ratified international treaties, once

1 This article is primarily focused on international human rights law because of its sui generis nature of aiming to afford practical and effective protection to individuals and groups who are not parties to the relevant international instruments. The import of this article is, therefore, to make recommendations for the purposive interpretation of art 2(6) of the 2010 Kenyan Constitution so as to achieve the practical and effective protection of individuals and groups, the purpose and objective of international human rights law.

2 F Viljoen International human rights law in Africa (2012) 522; M Killander & H Adjolohoun ‘Introduction’ in M Killander (ed) International law and domestic human rights litigation in Africa (2010) 3 11. Dualism envisages the complete separation of national and international legal systems, and that for rules of international law to apply in the national legal system, they must be transformed, through domestication, and thus apply as part of domestic national law and not as international law. Monism, on the other hand, envisages international law and national law as part of one legal system, and that international law is directly incorporated into the national legal system without any difficulty in its application as international law within the domestic legal system. For a more elaborate analysis of monism and dualism, see TM Frank & AR Thiruvengadam ‘International law and constitution making’ (2003) 2 Chinese Journal of International Law 470; WM Gibson ‘International law and Colombian constitutionalism: A note on monism’ (1942) 36 The American Journal of International Law 614; G Slyz

‘International law in national courts’ (1995-1996) New York Journal of International



Law and Politics 65 67.

3 See JO Ambani ‘Navigating past the “dualist doctrine”: The case for progressive jurisprudence on the application of international human rights norms in Kenya’ in Killander (n 2 above) 26. The doctrine of transformation was aptly captured by Justice Atkin in the case of Commercial and Estates Co of Egypt v Board of Trade [1925] 1 KB 271, 295 where he stated: ‘International law as such can offer no right cognisable in the municipal courts. It is only in so far as the rules of international law are recognised as included in the rules of municipal law that they are allowed in municipal courts to give rise to rights and obligations.’

domesticated, only had application in the domestic legal system at the same level as other domestic legislation, and they could be amended by a simple legislative majority.4 This indifferent treatment

of international law was replicated in the Kenyan Judicature Act which, in enumerating Kenya’s sources of law, did not earmark it as a source of law in Kenya’s domestic legal system.5 The situation had

been exacerbated by the poor domestication practice of the Kenyan legislature, with most of the ratified treaties having had no force of law in Kenya due to the absence of domesticating legislation.

Due to this lacuna, the Kenyan courts had developed an inconsistent practice in relation to international law, with the courts generally shying away from directly applying international law.6 The

prevailing judicial position on the applicability of international law in the Kenyan domestic legal system prior to the enactment of the 2010

Constitution was established in the case of Rono v Rono & Another by the Court of Appeal, then the highest court in the country.7 In this case, the Court affirmed that as a member of the international

community, Kenya subscribed to international customary law and ratified international treaties.8 It acknowledged the long-standing debate on the applicability of international law in the Kenyan

domestic legal system, and affirmed that ‘Kenya subscribes to the common law view that international law is only part of domestic law

4 See Frank & Thiruvengadam (n 2 above) 477 483 485, who affirm this equal hierarchal status of ratified and domesticated treaties vis-à-vis domestic legislation in a dualist system in their discussion of the prevailing situation in Italy, the United Kingdom and India respectively. See also Ambani (n 3 above) 30, who is of the opinion that prior to the enactment of the 2010 Kenyan Constitution, international law was hierarchically lower in rank than both the Constitution and domestic legislation in the Kenyan domestic legal system. This, however, could not have been the case with domesticated treaties, as the domesticating legislation had equal hierarchical status to any other parliamentary legislation and could only be overridden by subsequent legislation.

5 The Judicature Act of Kenya, Cap 8 (Revised Edition 2007 (2003)) http://



www.kenyalaw.org/Downloads/GreyBook/3.%20Judicature%20Act.pdf (accessed

22 April 2013), which in sec 3 enumerates sources of law in Kenya as the

Constitution, Acts of Parliament, the common law, doctrines of equity, the statutes

of general application, and African customary law so long as it is not repugnant to

justice and morality or inconsistent with any written law.

6 This judicial attitude is exemplified by the case of Okunda v Republic [1970] EA



512, where the High Court held that since international law was not included in

the Judicature Act as a source of law in Kenya, it did not have any legal force in

the domestic legal system. In the High Court case of Pattni & Another v Republic

[2001] KLR 262, the Court similarly held that even though international law

norms could have persuasive value and that the courts could take account of



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