Article 2(5) of the Constitution provides that “the general rules of international law shall form part of the law of Kenya”.
And Article 2(6) has opened an amazing legal debate by providing “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
These far reaching provisions of the Constitution are causing great debate in the legal fraternity. Kenyan scholars are engulfed in defining ‘international law’ and what ‘ratification’ in the context of the Constitution means.
International treaties are defined as agreements under international law usually between states but also between other subjects of international law, in particular international organisations and include Conventions, Protocols and Charters.
To ratify an international treaty essentially means to make it valid by confirming it while acceding is the act by which the state signifies its agreement to be legally bound by the terms of a particular treaty.
Normally the signing of the treaty is followed by ratification. In this case, signing a treaty can either be putting a signature subject to ratification by the state or it can involve signing only where the treaty so permits.
Since Independence, Kenya has signed and ratified over 49 treaties and acceded to about 87 others. The treaties relate to the United Nations, Humans Rights, African Charter, Refugees, International Humanitarian Law, Narcotics, Trade, Transport and Communication, Civil Aviation, East African Community, Law of the Sea and many others.
Sadly, nobody in the country can at a glance give an up to date list on treaties Kenya has ratified, or those which have been domesticated i.e. incorporated into Kenyan law through the enactment of an Act of Parliament though the National Centre for Law Reporting and the Law Society has tried to do so.
It is believed that the Ministry of Foreign Affairs is responsible for the signing and ratification with no one knowing where the depository of treaties is.
Some obscure corner
The Attorney General will have to compile a compendium of treaties and Conventions and if he fails a citizen can, it can be argued, force him to give the information under the constitutional right to information provisions.
The prospect of one’s fate lying untapped in a treaty tucked in some obscure corner is a frightening one and the sheer number of treaties, conventions, protocols and charters together with their annextures and amendments make it virtually impossible to keep track of them.
For example, under the United Nations umbrella there is 1 Charter with 2 Amendments, 3 Protocols, 3 Treaties, 9 Conventions and 18 Annextures while the international treaties, conventions, protocols, charters dealing with the environment are approximately 24.
The Attorney General is obligated under the Revision of Laws Act to keep custody of the laws and should ideally be a depository for all international instruments.
Many profound questions abound. What is ‘international law’? Does the Constitution provide for rectification of all the treaties?
What is the impact of a signed but not ratified treaty or a treaty not domesticated? What about the pending Bill?
The Ratification of Treaties Bill, 2011 which has been afloat since 1st December, 2011, was not brought to parliament by the Attorney General but by a lone member of parliament, Honourable Millie Odhiambo.
The Bill went through the second reading from November 29, last year, to December1, and it provides for a standardised procedure for ratification of international treaties by the Government.
The Bill seeks to provide for a mechanism through which the government through the office of the Attorney General can keep track of all treaties which are binding on the citizens of Kenya and form part of the law of Kenya.
But the general consensus is that the Bill is half baked and an inadequate piece of legislation likely to further compound intricate questions of law.
The legal pundits must reach a consensus on the ongoing debate that relates to “monist” versus “dualist” system.
Whereas the Constitution stipulates that all international treaties and conventions ratified by Kenya form part of the law of Kenya (which is monist) most treaties and conventions require the state to domesticate the treaty or convention before it can become law in that state (which is dualist).
Bottom line
Can a treaty without the Kenyan parliament enacting a law have the force of law, and in a disputed scenario, which law is superior?
In light of Article 2 of the Constitution and the principle of the sovereignty of our parliament, a middle ground must be reached perhaps requiring all ratified international instruments to be approved by Senate or as proposed in the Ratification of Treaties Bill, by the Cabinet.
The bottom line is that practitioners and litigants must determine their legal position by first going through the Kenyan laws and then verifying the law through the maze of virtually unknown treaties tucked in various government departments.
The writer is a lawyer. bowryp@hotmail.com
