* LLB (Hons) (Nairobi), LLM (Human Rights and Democratisation in Africa) (Pretoria), LLD (Western Cape); email@example.com. The kind financial support of the University of the Western Cape Research Department is acknowledged.
legalsysteminthecontextofthenewconstitutional dispensation. It recommends thatinorderforinternational humanrightslawtohavea prominentplaceinthegovernance ofthecountry,article2(6)ofthe Constitutionshouldbeinterpretedprogressivelysoas to giveinternational humanrightslawnormsaninfra-constitutionalbutasupra-legalstatusin thedomesticlegalsystem.Inthisway,internationalhumanrightslawwill actasabulwarkagainstrecessiontototalitarianrule,aswellassafeguard thedemocraticandfundamentalrightsprotectiongains that werewon in thestruggleforconstitutionalchange. 1 Introduction
International law, specifically international human rights law, has had an unenviable history in the Kenyan domestic legal system.1The 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.2With 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.3The 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 suigenerisnature 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 Internationalhumanrightslawin Africa (2012) 522; M Killander & H Adjolohoun ‘Introduction’ in M Killander (ed) Internationallawanddomestic humanrightslitigation inAfrica(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 ChineseJournalofInternational Law470; 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) NewYorkJournal ofInternational
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 CommercialandEstatesCoofEgyptvBoardofTrade  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.4This 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.5The 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.6The
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 RonovRono&Anotherby the Court of Appeal, then the highest court in the country.7In this case, the Court affirmed that as a member of the international
community, Kenya subscribed to international customary law and ratified international treaties.8It 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-visdomestic 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://