The Current Status of International Law in Kenya (original) (raw)
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The status of international law in Kenya
In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domestic legal order. This provides courts with the opportunity to seek inspiration from the non-municipal legal framework when resolving disputes. However, the manner in which the Constitution incorporates international law is ambiguous and confusing. It fails to create a rank that can be used to resolve conflicts between local legislation and a rule of international law. This lack of affirmation of the place of international law in the normative rank has spawned judicial interpretation that has accorded international law the same status as statute law. This not only diminishes the weight that courts should place on international law, but also provides courts with a certain amount of discretion whenever a conflict with an Act of Parliament arises. In addition to treaties ratified by Kenya, the Constitution also refers to ‘general rules of international law’ as being part of the law of Kenya. This phrase is problematic because, first, it is one not generally used to refer to sources of legal norms in international law. Secondly, it makes it difficult for courts to ascertain where customary international law falls within the scheme of sources of legal norms. There has been a general tendency to equate general rules of international law with customary international law in a manner that is strenuous and confusing. Because courts may not be best placed to devise an interpretation that affirms the content and nature of international law in the legal system, a constitutional amendment has become an imperative if the uncertainty is to be removed.
International law in Kenya.pdf
Eddy Onyari Mokaya, 2019
In 2010 the promulgated Constitution changed the landscape in Kenya in a wide array of spheres including, social, political, cultural and economic. The Constitution among other things captured the various sources of law to be applied in Kenya, thus the Constitutional underpinnings of the sources of law, brought clarity and certainty in law. The Constitutional under Article 2(5) and (6) provided for application of the general rules of international law and any treaty or convention ratified by Kenya to form part of Kenyan law. What remains unclear is what amounts to the general rules of international? The same is not defined or the constituents are not laid out under the Constitution and under Article 38 (1) of the Statute of International Court of Justice which entreats the various sources of international law. From the foregoing backdrop, this Article craves to find the place of international law in the Kenyan context by trying to find its hierarchical order in the Constitution. The Article begins by highlighting the system which Kenya employs, simply is Kenya a dualist or a monist state? This issue is unclear from the various authors who have diverse opinions on this matter, thus this matter has remained unclear and the same has been exemplified from the different legal jurisprudence emanating from Kenyan Courts. The Article concludes by detailing the place and status of international law in Kenya by looking at the provisions of the Constitution, Judicature Act, and jurisprudence from the Courts. It is noteworthy to mention that this issue requires consistent and coherent jurisprudence from Kenyan courts and it is my view that clarity or an Advisory Opinion should be sought from the Supreme Court on the place of International law in Kenya to lay this issue to rest.
APPLICATION OF INTERNATIONAL LAW IN KENYA
International law, under the Constitution of Kenya has been deemed to form part of the Kenyan legal system. This is a contrast from the former dualist approach under the repealed constitution. Even though the application of International law usually has direct application without the necessity of domestic legislation several problematic issues and ambiguities as to the implications for the extent to which international law may be applicable. This paper seeks to distinguish between the Monist state and Pluralist state while discussing the application of International law in Kenya under the Constitution of Kenya 2010.
African Human Rights Law Journal, 2013
The prominent use of international human rights law in a state's 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 state's 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 AFRICAN HUMAN RIGHTS LAW JOURNAL (2013) 13 AHRLJ 415-440 * 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. 416 (2013) 13 AFRICAN HUMAN RIGHTS LAW JOURNAL 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.
An analysis of the position of customary international law in Kenya and in the United States
Customary International law at its best:An analysis of the position of customary International law in Kenya and the United States, 2019
Customary International law is the general practice between or amongst states which is recognised by law. In this paper, my focus is on the position of customary international law in Kenya and the United States. Further, I have made a comparison between the two states as regards to how they treat customary international law in their respective jurisdictions. In conclusion, I have argued that customary International law is subject to the national laws of both countries. However, with regards to jus cogens norms, they have customary international status and are non derogable.
THE MEANING OF LAW IN RELATION TO KENYA’S LEGAL SYSTEM
2014
By Kiboyye Okoth-Yogo Working Paper Series, IJED Institute, 2015 What does the expression “law” mean to a typical Kenyan? How does the expression “law” relate to the Kenyan legal system? These are the two questions this paper seeks to answer. The paper is also sentient of the understanding that law is as old as human society. The need for law has been crucial as communal glue. Both the democratic and authoritarian regimes claim their legitimacy from certain legal authority. Whether due to fear of metaphysical abyss, absurdities of self-help, need for conserving socio-economic goods, or keeping in place a government of effective mechanisms, among other things, law is extant. No wonder, in spite of the subjugationist foundations of the Kenya’s legal system, law having been established as tool for pacifying the Kenyan communities into accepting the derogatory colonial edifice, independence could only be a promise to progressively engender changes. The idea of dissipating the basic colonial legal foundations, that integral part of the colonialism, was never even considered. It had assumed a significant place in the carved up Kenyan nation-state society that could not just be fancied off. Another way of looking at law is through its seamless-chaos. This is crystallized both by its seemingly orderly instrumentation and erratic interactions between different cultural elements, often drawing from the deepest ends of every discipline. Occasionally one catches glimpses of oscillation between its divergent regional, ideological and cultural dimensions-North-South divide, social and economic eccentricities, communitarian ethos versus unmitigated free enterprise among others. However such visualizations are more of flashes than clear trajectories. About one hundred and thirty years ago Kenya neither existed as a nation nor state. In its place were different national configurations exemplified in different sizes and customs characterized by unique norm structures, processes and socio-legal systems. Custom as used here refer to the conventional pattern of behavior that exist within a particular socio-political setting. Customs in these nations, what the Luo call piny, headed by a ruoth, or the Nandi Pororiet or the Wanga Kingdom, among others, always acquired the force of law as they became the undoubted rule by which a variety of rights, entitlements, and responsibilities were regulated between members of a polity. Lord Denning in his enunciation of the English meaning of customary law asserted in R. v Secretary of State for Foreign and Commonwealth Affairs that “these customary laws are not written down. They are handed down by tradition from one generation to another. This is similar to the meaning of Suba, Luo, Kikuyu or any other African customary law. Such customs “are well established and have the force of law within the community”. However, like any other African colonial enterprise, this changed, especially after the Berlin conference on the partition of Africa by European powers, which ended in 1885. By 1920, Kenya had assumed its present status. It was to remain under British rule until 1963. Within the short colonial period, lasting less than one hundred years, Kenya had become a flash point for legal experimentation and chaos. A new legal system, largely denigrating the traditional set up was established. What has remained of the old legal systems and residually infused within the Kenyan legal system is collectively referred to as the African Customary Laws applied to matters such as marriage, divorce, traditional authority among other tangential issues. Law is as old as human society. The need for law has been crucial as a communal glue. Both the democratic and authoritarian regimes claim their legitimacy from some legal authority. Whether due to fear of metaphysical abyss, absurdities of self-help, need for conserving socio-economic goods, or keeping in place a government of effective mechanisms, among other things, law is extant. No wonder, in spite of the subjugationist foundations of the Kenya’s legal system, law having been established as tool for pacifying the Kenyan communities into accepting the derogatory colonial edifice, independence could only be a promise to progressively engender changes. The idea of dissipating the basic colonial legal foundations, that integral part of the colonialism, was never even considered. It had assumed a significant place in the carved up Kenyan nation-state society that could not just be fancied off. Another way of looking at law is through its seamless-chaos. This is crystallized both by its seemingly orderly instrumentation and erratic interactions between different cultural elements, often drawing from the deepest ends of every discipline. Occasionally one catches glimpses of oscillation between its divergent regional, ideological and cultural dimensions-North-South divide, social and economic eccentricities, communitarian ethos versus unmitigated free enterprise among others. However such visualizations are more of flashes than clear trajectories. About one hundred and thirty years ago Kenya neither existed as a nation nor state. In its place were different national configurations exemplified in different sizes and customs characterized by unique norm structures, processes and socio-legal systems. Custom as used here refer to the conventional pattern of behavior that exist within a particular socio-political setting. Customs in these nations, what the Luo call piny, headed by a ruoth, or the Nandi Pororiet or the Wanga Kingdom, among others, always acquired the force of law as they became the undoubted rule by which a variety of rights, entitlements, and responsibilities were regulated between members of a polity. Lord Denning in his enunciation of the English meaning of customary law asserted in R. v Secretary of State for Foreign and Commonwealth Affairs that “these customary laws are not written down. They are handed down by tradition from one generation to another. This is similar to the meaning of Suba, Luo, Kikuyu or any other African customary law. Such customs “are well established and have the force of law within the community”. However, like any other African colonial enterprise, this changed, especially after the Berlin conference on the partition of Africa by European powers, which ended in 1885. By 1920, Kenya had assumed its present status. It was to remain under British rule until 1963. Within the short colonial period, lasting less than one hundred years, Kenya had become a flash point for legal experimentation and chaos. A new legal system, largely denigrating the traditional set up was established. What has remained of the old legal systems and residually infused within the Kenyan legal system is collectively referred to as the African Customary Laws applied to matters such as marriage, divorce, traditional authority among other tangential issues. ________________________________