International Law

Do articles 2 (5) and 2(6) of the Constitution of Kenya
2010 transform Kenya into a monist state?
Joseph Ndirangu Maina
© 2013
Electronic copy available at: http://ssrn.com/abstract=2516706

DO ARTICLES 2(5) & 2(6) TRANSFORM KENYA INTO A MONIST STATE? JOSEPH NDIRANGU
Table of Contents
Table of Authorities .......................................................................................................... 3
Introduction ..................................................................................................................... 5
Theories about International Law in the National Legal System ......................................... 5
1. The Dualist School ....................................................................................................................... 5

2. The Monist School....................................................................................................................... 6
3. Theories of Co-ordination ........................................................................................................... 7
4. Implementation: The Doctrines of Incorporation and Transformation...................................... 7
The Domain of International law in Kenya: a transformation? ........................................... 9
Kenya’s Dualist Approach/ Anomaly before August 2010 .................................................................. 9

Implications of Articles 2 (5) and 2 (6) of the Constitution............................................................... 11
Requirement for a deliberate process versus automatic adoption .............................................. 12
Implementing article 2 (5) and 2 (6) ............................................................................................. 15
On obligation for municipal law to conform to international law ................................................ 17
Conclusion...................................................................................................................... 18
Bibliography ................................................................................................................... 20
Electronic copy available at: http://ssrn.com/abstract=2516706

Table of Authorities
Cases
Beatrice Wanjiku & Another v. Attorney General & Another Petition 190 of 2011 ............................. 14
Commercial and Estates Co. of Egypt v Board of Trade [1925] 1 KB 271 ............................................... 8
Diamond Trust (K) Ltd. v. Daniel Mwema Mulwa HCCC No. 70 of 2002 .............................................. 14
Okunda v Republic [1970] EA 512 ......................................................................................................... 10
Re The Matter of Zipporah Wangui Mathara Bankruptcy Cause 19 of 2010 ....................................... 14
Rono v. Rono & another [2008] KLR 812 ................................................................................................ 9
Statutes
Section 10 of the Treaty Making and Ratification Act (No. 45 of 2012) ............................................... 16
Section 11 of the Treaty Making and Ratification Act (No. 45 of 2012) ............................................... 16
section 3 of the Judicature Act (Chapter 8 of the Laws of Kenya) ........................................................ 15
Section 38 (d) of the Civil Procedure Act, Cap. 21 Laws of Kenya ........................................................ 14
Section 40 of the Civil Procedure Act.................................................................................................... 14
Section 5 of the Treaty Making and Ratification Act (No. 45 of 2012) ................................................. 15
Section 8 (2) of the Treaty Making and Ratification Act ....................................................................... 16
Sections 4 of the Treaty Making and Ratification Act (No. 45 of 2012)................................................ 15
Constitutional Provisions
150 (1) of the Constitution.................................................................................................................... 18

Article 1 of the Constitution.................................................................................................................. 13
Article 132 (1)(c)(iii) of the Constitution ............................................................................................... 18
Article 132 (5) of the Constitution ........................................................................................................ 18
Article 2 (5) of the Constitution ............................................................................................ 9, 11, 12, 18
Article 2 (6) of the Constitution ............................................................................................ 9, 11, 15, 18
Article 21 (4) of the Constitution .................................................................................................... 13, 17
Article 50 (2) (n) of the Constitution ..................................................................................................... 18
Article 51 (3) (b) .................................................................................................................................... 17
Article 58 (6) (a) (ii) of the Constitution ................................................................................................ 18
Article 94 (1).......................................................................................................................................... 13
Article 94 (5) of the Constitution .......................................................................................................... 13
Articles 145 (1) of the Constitution....................................................................................................... 18
Treaties
Article 11 of the International Covenant on Civil and Political Rights states ....................................... 14
Article 38 of the Statute of the International Court of Justice ............................................................. 12
3
Article 7 (2) of the Vienna Convention on the Law of Treaties of 1969 ............................................... 15
Miscellaneous
Article 25 of the Basic Law of the Republic of Germany......................................................................... 8
4
Introduction
Articles 2(5) and 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.
The argument on the place of international law and the applicability of a monist or dualist
state is diverse as it is dependent on different schools of legal philosophy. While on the one hand a
dualist might argue for state promulgated laws taking, not only a separate, but also the top tier over
international law, a monist would consider that the hierarchy of laws does not necessarily cease
upon the highest law of a given land: the constitution, but is bound to continue to that system of
laws that govern all human beings beyond territorial boundaries, and rise even higher to that which
dictates the concord of the universe.
This paper seeks to examine Kenya’s position on the relationship of international law with its
domestic legal system, in light of the existing theories on the philosophy of such (national-
international law) relationships.
Towards this end this paper is structured into two main parts. The first is an introductory
outline on the existing theories, regarding the relationship between national and international law.
And in the second part is an examination of the status and impact of international law in Kenya in
light of these theories, taking a comparative outlook of the previous Constitutional, and institutional,
regime (Pre August 2010) with the emerging jurisprudence and analysis of the current Constitution.
Theories about International Law in the National Legal System

The use of international law in the National legal system is always presented as a clash
between dualism (or pluralism) and monism.
1. The Dualist School
The dualist doctrine points to the essential difference of international law and municipal law.
L. Oppenheim in his book “International Law: A Treatise” outlines the basic distinctions underlying
the two systems into three categories with reference to: their sources of law, the relations they
regulate, and the substance of their law.
First, in relation to the differences in their sources, Oppenheim considers that, municipal law
derives from custom grown up from within the boundaries of the respective State and statutes
5
enacted by law-giving authority. Sources of international law, however, are custom grown up within
the family of nations and law-making treaties concluded by members of that family1.
Secondly, in relation to the subjects that each system regulates: international has as its
subjects Sovereign States. It regulates relations between the States, members to that family of
nations. Municipal law, on the other hand, applies within a state and regulates the relations of its
citizens with each other,2 and the relations between the State and the respective individuals.3
Thirdly, with regard to substance of the law: whereas municipal law is a law of a Sovereign
over the individuals subject to its sway, international law is a law, not above, but between Sovereign
States, and therefore a weaker law.4 Hence in case of a conflict between international law and
municipal law, the dualist would assume that a municipal court would apply municipal law.5
The Dualist school concludes that the two systems of law are different systems of law, each
competent in its own domain.6 Consequently, States ought to apply municipal law with no obligation
to make it conform to international law; and, that international law is binding municipally if the
State, through a deliberate process, allows it to do so.
2. The Monist School
According to Hersch Lauterpacht, monism takes the form of an assertion of the supremacy
of international law even within the municipal sphere.7 The monist school further develops the view
that international law reaches not only to State parties, but that individuals are also subjects of it.
Hans Kelsen is among the major proponents of the monistic school of thought. His approach
on monism is derived from the idea that a legal order is a compound of norms, the validity of which
relies on a hypothetical basic norm, the Grundnorm8. Kelsen establishes his argument from a
“foundations of law” perspective and considers the extreme example where a State emerges out of
a revolution, and therefore seeks international approval and recognition of Statehood. From this
1
Oppenheim, L., INTERNATIONAL LAW: A TREATISE (New York. Longmans, Green & Co., 1912) p. 25
2
Brownlie, I., PRINCIPLES OF PUBLIC INTERNATIONAL LAW (New York. Oxford University Press. 2008) p. 32
3
Supra note 1
4
Ibid
5
Supra note 2
6
Mwagiru, M., From Dualism to Monism: The Structure of Revolution in Kenya’s Constitutional Treaty Practice,
Journal of Language, Technology & Entrepreneurship in Africa, Vol. 3 No. 1 (2011)
7
Supra note 2
8
Rigaux, F., Hans Kelsen on International Law, European Journal of International Law 9 (1998), 325 - 343
6
basis, therefore, he notes that the basic norm of international law in some sense therefore
determines the validity of the national basic norms. 9
Essentially, the Monist school of thought posits that both international law and municipal
law are part of one overarching legal system. Since they are part of the same system, and because
there is no competing relationship between them, treaties that a State has ratified are automatically
part of municipal law and are binding in that domain.
Consequently, monist thinking maintains that municipal law must be consistent with
international law; and that both municipal law and international law must respect the values of that
overarching legal system. In addition, international law and municipal law are ultimately concerned
with the affairs of the individual.
3. Theories of Co-ordination
Theories of co-ordination have developed, in principle, out of observation of the ways in

which international and municipal legal systems interact in reality. It posits that international and
national organs, including courts, are not necessarily swayed by the theoretical considerations
above, of monism or dualism.
Sir Gerald Fitzmaurice notes that at the root of the theoretical conflict by dualists and
monists schools, is the premise that international law and municipal law have a common field of
operation10. He states that the two systems do not come into conflict since they work in different
spheres, and each is supreme on its own field.
In practice, conflicts arise, not between the systems, but obligation, that is, an inability of
the state on the domestic plane to fulfil its obligations under international law, either by breach of
treaty or breach of international customary law. The consequences of this will not be the invalidity
of the international law but the responsibility of the state on the international plane.
Rousseau characterizes international law as a law of co-ordination which does not provide
for automatic abrogation of internal rules in conflict with obligations on the international plane.11
4. Implementation: The Doctrines of Incorporation and Transformation
By extension to the above-presented conflicts on the relationship between international law

and domestic law, generally, is the question of particular implementation of international law to
9
Supra note 2 at p. 33
10
Ibid.
11
Ibid.
7
domestic jurisdictions. Two theories come into play in explaining how international law becomes
part of national law: The Doctrine of Incorporation and the Doctrine of Transformation.
Under the doctrine of incorporation, a rule of international law becomes part of national
law without the need for express adoption by the legislature or by the local courts. This ‘automatic
adoption is said to operate unless there is some clear provision of national law, such as statute or
judicial decision, which precludes the use of the international law rule by the national court.12
Consequently, once it is established that an international law rule exists and would be relevant to
the case in hand, under the doctrine of incorporation, it becomes part of national law and may be
applied by the national court.
Usually, where a country adopts the incorporation approach is because of some

constitutional provision, such as, Article 25 of the Basic Law of the Republic of Germany, on the
Primacy of International Law, which provides: “The general rules of International law shall be an
integral part of federal law. They shall take precedence over the laws and directly create rights and
duties for the inhabitants of the federal territory.”
Conversely, the doctrine of transformation states that rules of international law do not
become part of national law until they have been expressly adopted by the State. International law is
not ipso facto part of national law. Consequently, a national court cannot apply a particular rule of
international law until that rule has been deliberately ‘transformed’ into national law in the
appropriate manner, as by legislation. Further, international law and national law are kept separate
by the State and it is only if the State has taken the conscious step of utilizing rules of international
law that the rules so chosen can be said to be ‘part of’ national law.13
Atkin L.J in the case of Commercial and Estates Co. of Egypt v Board of Trade14, summarized
the doctrine of transformation as follows: “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.”15
The doctrines of incorporation and transformation are considered to be attached to the

monist and dualist legal systems in providing an approach for how states will deal with treaties. The
monist school contains the methodology of incorporation, by which international law is
12
Dixon, M., TEXTBOOK ON INTERNATIONAL LAW (New York. Oxford University Press. 2007) at p. 94
13
Ibid
14
[1925] 1 KB 271
15
Ibid at p. 295
8
automatically incorporated into municipal law. And the dualist school contains the methodology of
transformation, by which international law is not automatically binding on States unless it has been
deliberately transformed into municipal law.
The Domain of International law in Kenya: a transformation?

The discourse on the relationship between international law and national law in Kenya plays
in the context of the Constitutional switch of August 2010, and its implications. Hence the usual
approach amongst scholars and observers, within the debate, has been to compare the regime
established by the new constitution with that that existed before August 2010. And the impending
question is whether under the new constitution, Kenya transforms to a monist state.
Article 2 (5) and 2 (6) of the Constitution of Kenya 2010 are considered to be the
revolutionary provisions with regard to application of international law in Kenya. Article 2 (5) of the
Constitution states that the general rules of international law shall form part of the law of Kenya.
Article 2 (6) then states that any treaty or convention ratified by Kenya shall form part of the law.
Before an analysis of the implication of the 2010 Constitution, an initial outlook of the previous state
is necessary.
Kenya’s Dualist Approach/ Anomaly before August 2010
The 1963 Constitution with its amended versions running until August 2010 did not specify
the applicability of international law in Kenya. The lack of constitutional engagement led it to be
practiced in an ad hoc manner16, and the resulting practice developed over time.
Though widely considered that the emerging practice was of dualistic application, the ad hoc
practice created a state of ambiguity in treaty practice, generally, in terms of determining which
treaties were binding on Kenya and those that were not. Some treaties were considered binding
upon ratification, regardless of not fulfilling the dualist requirement of transformation, while on the
other hand, some treaties gained the force of law in Kenya following the dualist practice to
completion, meaning they were first transformed into municipal law.
This ambiguity in practice was reflected in the case of Rono v. Rono and Another17 in which
the Court of Appeal considered whether it should apply international law in its consideration of the
unequal allocation of property among male and female heirs. The Court was of the opinion hat
16
Mwagiru, M., From Dualism to Monism: The Structure of Revolution in Kenya’s Constitutional Treaty Practice,
Journal of Language, Technology & Entrepreneurship in Africa, Vol. 3 No. 1 (2011)
17
Rono v. Rono & another [2008] KLR 812
9
despite the traditional view that international obligations were not binding where incorporation of
international law into domestic laws had not occurred, two grounds paved way for adoption of
international obligations regardless: one, where there is no conflict with existing state law, and,
secondly in relation to human rights treaties.
In much earlier case Okunda v. Republic,18 the Court in a landmark case, looked in the
opposite direction, where it stated that where there is a conflict between national laws and
international treaty instruments, national law takes precedence.
Further, Kenya’s practice of dualism reflected historic tensions between the legislature and
the executive. The practice of transformation was championed by the executive, but under the initial
format treaties were first ratified before they were tabled in parliament for consideration,
amendments to other laws, and /or enactment to complete the ‘transformation’ of the international
law. With the ambiguity in the state of ratified treaties, considered above, the lack of domestication
by parliament did not always shut out the applicability as law of treaties concluded by the executive.
Subsequently, the transformative aspect in Kenya’s treaty practice, termed as

“domestication”, developed more as a means to check the executive from excesses, and to re-
elevate the legislature in its role as the “law-maker”, than to enable conformity to international laws
assented to. It developed as a political tool in the domestic power struggle, rather than a tool for
facilitating international-national relations. Domestication therefore ended up quashing the
methodology and doctrine of transformation as understood in international law. Transformation in
international law prescribed merely a methodology by which a treaty would be clothed in the
outward garb of municipal law.19 It did not entail subjecting treaties to the vicissitudes of municipal
politics. In addition, within this corrupted-dualist practice there was no place for incorporation.
Domestication posed a further far reaching problem for international law. In practice,
domestication meant that for international law to be applied domestically, it had to first of all be
treated in the same way as municipal law was treated in the political domain of the State. This
approach posed a danger to the integrity of international law as it made the international legal
system subject to the manipulations of politicians and interest groups in pursuit of their sectoral
interests.
18
Okunda v Republic [1970] EA 512
19
Supra note 16
10
Implications of Articles 2 (5) and 2 (6) of the Constitution
Most writers have translated Articles 2 (5) and 2 (6) of the 2010 Constitution to mean that
Kenya emerges as practicing a monist legal system.20 At the onset, however, and of fundamental
achievement is the fact that the provisions on treaty practice in the new constitution clarify the
previous tradition which was characterized by many anomalies and inconsistencies. This state of
clarity is considered to effectively kill the doctrine of ‘domestication’ as previously applied.
On the question whether Kenya transforms into a monist system, a comparative analysis
would necessitate considering the consequences of both legal systems in relation to the entirety of
the provisions in the Constitution, along with the considerations and intimations given by the courts.
As discussed above, the consequent characteristics that flow from the nature of the two
legal systems can be summarized as follows:
Dualism Monism
 International law is binding municipally if the  A rule of international law becomes part of
state through a deliberate process allows it national law without the need for express
e.g. by legislative mechanism adoption by the legislature or local courts
 Implementing: Applies the doctrine of  Implementing: Applies the doctrine of

transformation incorporation
 States apply municipal law with no  Municipal law must be consistent with
obligation to make it conform to international law; and both must respect the
international law values of the overarching legal system
From the above characteristic differences, I shall venture to draw a comparative analysis of
the Constitutional provisions in an attempt to determine whether there has been a transformation
towards the monist approach.
20
See Mwagiru, M., From Dualism to Monism: The Structure of Revolution in Kenya’s Constitutional Treaty
Practice, Journal of Language, Technology & Entrepreneurship in Africa, Vol. 3 No. 1 (2011); The Kenya
National Commission on Human Rights, Making the Bill of Rights Operational: Policy, Legal and Administrative
Priorities and Considerations (2011); Herman Omiti, The Monist Dualist Dilemma and the Place of International
Law in the Hierarchy (July 3, 2012). Available at SSRN: http://ssrn.com/abstract=2099043
11
Requirement for a deliberate process versus automatic adoption
Article 2 (5) of the Constitution provides that the general rules of international law shall
form part of the law of Kenya. This begs the question on what comprises these general rules and
where they are applicable to Kenya, and, most important to this debate, how they are included into
the sources of law of Kenya.
One approach in the determination of the general rules of international law takes the view
that the general rules are actually the sources of law as provided for under the Statute of the
International Court of Justice.21 According to the Statute, international custom is used as evidence of
a general practice accepted by law. The Statute also sets out, as source of law, general principles of
law recognized by civil nations. Judicial decisions, as qualified by the provisions of Article 59 of the
Statute, including decisions of municipal courts are also treated as sources of law.22 And, finally,
writings of the most highly qualified publicists, treated mostly as evidence of the law.23
Whereas different interpretations as to what comprise these rules of international law exits,
international customary law, however, is generally accepted as the main source of such rules.24
Practically, there are very few issues today which are still under the exclusive regulation of
customary international law, for example state immunity, state responsibility or the status of
foreigners; and one would resort to that body of law should a dispute arise regarding any of these
issues.
The relationship between International Customary law and municipal law has long been
settled. It has been acknowledged that customary international law is part of municipal law, and is
binding on all states. 25 Article 2 (5) would be significant in solving an issue which is not clear either in
treaty law or addressing gaps between treaty law or addressing any gaps between treaty law and
domestic provisions. It would also be important where certain rules are contained in an international
treaty to which Kenya is not a party but which is important in substance and has a large number of
contracting parties, if it can be shown that the rules in the treaty are a codification of international
customary law.26
21
Article 38 lists the sources of International law
22
Abenga, Elvis Begi Nyachieo, The Place of International Law in the Hierarchy of Valid Norms Under the 2010
Kenyan Constitution (October 17, 2011) Available at SSRN: http://ssrn.com/abstract=2101565
23
Ibid
24
Supra note 16
25
Ibid
26
The Kenya National Commission on Human Rights, Making the Bill of Rights Operational: Policy, Legal and
Administrative Priorities and Considerations (2011)
12
In practice, Article 2 (5) will require judicial interpretation indicating what really general
rules of international law are and clarifying methods of ascertaining these rules.27
The implications of Article 2 (6), that any treaty or convention ratified by Kenya shall form
part of the law, is that treaties and conventions do not now have to be domesticated for them to
have the force of law in Kenya. It is by virtue of this provision that it has been argued that Kenya is
converted from a dualist into a monist state. However, the opinion has also been expressed that
these provisions do not convert Kenya into a strictly monist State, and that they cannot be read
independently from other Constitutional Provisions.
Article 21 (4) of the Constitution provides that the State shall enact and implement
legislation to fulfil its international obligations in respect of human rights and fundamental
freedoms. The requirement that the state shall enact and implement legislation to fulfil its
international obligations is a precise fit into the dualist practice, and seems to call for the previous
practice of domestication.
Article 51 (3) (b) poses a similar conundrum in the consideration whether the reading of
Articles 2 (5) and 2 (6) transform Kenya’s international law relations from the dualist state to the
monist school of thought. Article 51 (3) (b) reads that “Parliament shall enact legislation that takes
into account the relevant international human rights instruments.” The question therefore is
whether such requirement for the legislative input of parliament essentially invalidates the
automatic incorporation of such international law instruments, as per the requirement under the
monist school.
The doctrine of monism under Article 2 (5) and 2 (6) of the Constitution of Kenya would
seem to gain support when read along with the second part of Article 94 (5) of the Constitution.
Article 94 (5) of the Constitution vests the power to make Kenyan law with the Parliament of Kenya,
but with the exception of situations where the person or body making such law is authorized by the
Constitution or legislation. And such authorization may be read in Articles 2 (5) and 2 (6). However,
when taking the first part of Article 94 (5) which provides that only parliament contains legislative
authority to make Kenyan law, and reading that together with Article 94 (1) and Article 1 of the
Constitution, it would seem that parliament takes supremacy as it is the body endowed with the
27
Infra note 33, at paragraph 21, Justice Majanja stated that “I think a purposive interpretation and application
of international law must be adopted when considering the effect of Article 2 (5) and 2 (6).
13
sovereign legislative authority from the Kenyan people. This is the position echoed by Justice
Majanja in the Case of Beatrice Wanjiku & Another v Attorney General & Another:28
“Article 1 places a premium on the sovereignty of the people to be exercised through

democratically elected representatives and a contrary interpretation would put the executive in
a position where it directly usurps legislative authority through treaties thereby undermining
the doctrine of separation of powers which is part of our Constitutional set up.”
The difference between the dualist and monist systems relates, at a practical level, to the
steps needed before an international treaty has effect within the national system and what a court is
to do in a situation where the obligations under international and national law differ.
In the Case of Re The Matter of Zipporah Wangui Mathara29 the Court observed that the
International Convention on Civil and Political Rights, ratified on 1st May 1972, is part of Kenyan law
by virtue of Article 2 (6) of the Constitution and held that the incarceration of one for failure to pay a
civil debt goes against Article 11 of ICCPR30.
The Court in this case placed a higher regard for the provisions of international law (under
ICCPR) over domestic statutory provisions as per the Civil Procedure Act, Cap. 2131, which allows the
committal of a judgement debtor to civil jail, as one of the powers of the Court to enforce execution.
A contrary view was expressed in the case of Diamond Trust (K) Ltd. v. Daniel Mwema
Mulwa32 in which similar facts, concerning imprisonment of a judgement-debtor and evaluation of
the conflict between Civil Procedure Act and the ICCPR was considered. Justice Njagi, in this case,
referred to, and addressed the issue of the hierarchy of laws, which he considered to be three
tiered: with the Constitution at the apex, followed by Acts of Parliament and lastly subsidiary
legislation. On this basis, the learned judge stated that the ICCPR cannot rank pari passu with the
Constitution. And even if it ranks in parity with an Act of Parliament, “it cannot oust the application
of section 40 of the Civil Procedure Act. Nor for that matter, can it render section 40
unconstitutional.”
The recent case of Beatrice Wanjiku & Another v. Attorney General & another,33 the court
extensively considered the position of international law, similarly on the facts seeking determination
of the legality of commitment to civil jail of a judgment debtor in light of international law. The court
28
Infra note 33 at paragraph 20
29
Bankruptcy Cause No. 19 of 2010
30
Article 11 of the International Covenant on Civil and Political Rights states: No one shall be imprisoned
merely on the ground of inability to fulfil a contractual obligation.
31
Section 38 (d) of the Civil Procedure Act, Cap. 21 Laws of Kenya; Section 40 of the Civil Procedure Act
32
HCCC No. 70 of 2002
33
Petition 190 of 2011; Available at [2012] eKLR
14
took note of, and quoted the foregoing cases in its analysis. Justice Majanja, stated on the
supremacy of the Constitution in relation to international instruments that:
“I take the position that the use of the phrase ‘under this Constitution’ as used in the Article 2
(6) means that the international conventions and treaties are subordinate to and ought to be in
compliance with the Constitution.”34
On the position of international law in relation to the domestic legislation, the Judge stated
that:
“Although it is generally expected that the government through its executive ratifies
international instruments in good faith on behalf and in the best interests of the citizens, I do
not think the framers of the Constitution would have intended that international conventions
and treaties should be superior to local legislation and take precedence over laws enacted by
35
their chosen representatives under provisions of Article 94. ...Article 2 (5) and 2 (6)...should
not be taken as creating a hierarchy of laws akin to that set out in the provisions of section 3 of
the Judicature Act (Chapter 8 of the Laws of Kenya). Article 2 (5) and (6) must be seen in the
light of the historical application of international law in Kenya where there was a reluctance by
the courts to rely on international instruments even those Kenya has ratified in order to enrich
36
and enhance the enjoyment of human rights.”
Implementing article 2 (5) and 2 (6)
Article 7 (2) of the Vienna Convention on the Law of Treaties of 1969 places the power to
represent one’s State for the purpose of expressing consent to be bound by a treaty upon
ratification, to the executive. The effect of ratified treaties is that they become part of Kenyan law.
Hence there seems to be a conflict of roles between the two arms of government in implementing
international law. Parliament’s law-making function upon strict consideration of this situation is
usurped by the executive.
To streamline this status quo, Parliament has enacted the Treaty Making and Ratification Act
(No. 45 of 2012) which among other things ensures the involvement of Parliament in the process of
making or adopting anything that will have the force of law in Kenya. Under the title of the Act it
aims to give effect to the provisions of Article 2 (6) of the Constitution and to provide the procedure
for the making and ratification of treaties and connected purposes.
34
Ibid at paragraph 20
35
Ibid
36
Ibid at paragraph 21
15
Sections 4, 5, 7, 9, 10 and 11 of the Treat Making and Ratification Act37 reflect the provisions
under Article 7 (2) of the Vienna Convention on the Law of Treaties in granting powers to initiate and
ratify a treaty upon the executive arm of government. The Act however, as indicated above,
provides for the consolidation of the role of Parliament in its legislative authority.
Section 8 of the Act provides that once the Cabinet has approved the ratification of a treaty,
the Cabinet Secretary of the relevant State department “shall submit the treaty and a memorandum
on the treaty to the Speaker of the National Assembly.” Parliament, consisting of both or the
relevant house, shall consider the treaty38 and may approve it with or without reservation. Where
approved with reservation, the treaty shall be ratified with those reservations to the corresponding
article in the treaty.39 Parliament may also refuse to approve the ratification of the treaty in which
case the Government shall not ratify the treaty.40
From the above considerations, Parliament then plays an integral role in determining
whether international law, subscribed to through ratification of treaties, shall be binding as law in
Kenya. And even though once ratified, the obligations raised by treaty are binding, through this
process Parliament will consider and ensure consistency of the arising/ foreseeable international
obligations to the domestic circumstances, as well as the prevailing law. Therefore despite the
removal of the requirement to domesticate international law, the processes of consideration and
approval, with or without reservation, or rejection all together, nonetheless places international law
under check by the domestic legal system. It limits the extent of ‘automatic’ incorporation of
international law, and application of international law into Kenyan jurisdiction as proponents of
monist system may read in the provision of Article 2 (6).
The role of parliament as considered above further questions the primacy of international
law as argued by the monist doctrine. It raises doubt not only to the place of international law above
37
Section 4 of the Treaty Making and Ratification Act provides that the national executive shall be responsible
for initiating the treaty making process, and may delegate that responsibility (subsection 2); Section 5 provides
that initiating treaty making process shall follow the manner prescribed by the Cabinet Secretary; Section 7
provides that where the Government intends to ratify a treaty, the Cabinet secretary of the relevant State
department shall, in consultation with the Attorney-General, submit to the Cabinet the treaty [for their initial
consideration before presenting to Parliament]; Section 9 provides that upon approval by Parliament (without
reservations), the relevant Cabinet Secretary, shall within 30 days from the date of the approval of the
ratification of the treaty, request the Cabinet Secretary to prepare the instrument for ratification of the treaty;
Section 10 provides that, “all instruments of ratification of a treat shall be signed, sealed and deposited by the
Cabinet Secretary at the requisite international body and a copy thereof shall be filed with the Registrar.
Section 11 grants Cabinet Secretaries the power to delegate their role for purposes of fulfilling their functions
under the Act.
38
Section 8 (2) of the Treaty Making and Ratification Act
39
40
16
national laws, but also whether international law holds the same ground as national legislation.
Subjection of treaty making process to deliberation of parliament makes sure that parliament will
assent to those terms that conform to national circumstances, and assent with reservation or reject
treaties that do not.
On obligation for municipal law to conform to international law
Despite the limitations presented by the treaty making Act, as well as the case-by-case
consideration by Courts, of international law application in the domestic jurisdiction, the
Constitution ensures a certain level of adherence and consideration of international law. As
considered in the discussion above, the general application of Article 2 (5) and 2 (6) of the
Constitution is to specify, as well as clarify, the incorporation of international law as part of Kenyan
law. It has been argued that their inclusion into the Constitution and, more so, within the provision
stating the supremacy of the Constitution, as well as the exclusion of other sources of law, both
engraves and sets apart the institution and the role of international law in domestic jurisprudence.
In addition, the provision of the place of international law extends variously throughout the
Constitution, with various requirements/benchmarks placed on both legislation as well as State
authorities in the course of implementation of, and adherence to international norms.
Article 21 (4) of the Constitution, discussed above, requires the enactment of legislation to
fulfil international obligations in respect of human rights and fundamental freedoms. An alternative
(to the above given analysis) of this Article considers two reasons that may have informed the
wisdom of the Constitution into this provision. First, is to safeguard the application of human rights
guarantees as per treaty obligations by setting a point of reference for treaty execution in terms of
whether a treaty may be ‘self-executing’ or ‘non-self-executing’. By providing for a common
standard for application of treaties guaranteeing human rights, it ensures that the State shall take all
steps to make sure their implementation regardless of whether the treaty provisions may be non-
self-executing.41
The second interpretation of Article 21 (4) is to facilitate the passing of legislation to

implement the various human rights treaties that Kenya ratified before promulgation of the
Constitution, which it had not domesticated. A similar interpretation as the preceding explanations
may be given to Article 51 (3) (b), as to require in Parliament’s enactments considerations and
41
The Kenya National Commission on Human Rights, Making the Bill of Rights Operational: Policy, Legal and
Administrative Priorities and Considerations (2011)
17
inclusions of relevant provisions guaranteeing human rights, as provided under the relevant
international human rights instruments.42
Article 50 (2) (n) of the Constitution ensures the right to a fair trial and includes the right not
to be convicted of an act or an omission contrary to international law, at the time of which conduct
the act or omission was not a crime under international law.
Article 58 (6) (a) (ii) of the Constitution considers that in situations where Kenya may declare
a state of emergency and thereby institute measures that may limit the rights and fundamental
freedoms of the people, the State is to take into account its obligations under international law
applicable to a state of emergency.
Whereas the foregoing sections relate to legislative measures, which as per the
specifications under the Constitution, should conform in certain ways to international law, the
Constitution also sets certain requirements upon the State’s authority to ensure that the nations
obligations to international laws are met.
Article 132 (1)(c)(iii) of the Constitution provides that the “President shall...once every
year...submit a report for debate to the National Assembly on the progress made in fulfilling the
international obligations of the Republic.” To this effect, Article 132 (5) provides that “The President
shall ensure that the international obligations of the Republic are fulfilled through the actions of the
relevant Cabinet Secretaries.”
Articles 145 (1) and 150 (1) of the Constitution provide for grounds for the impeachment of
the President and the Deputy President where, among other grounds, they are believed to have
committed a crime under international law. Article 152 (6) similarly provide for the dismissal of a
Cabinet Secretary where they are believed to have committed a crime under international law. And
Article 181 (1) extends the same consideration to county governors.
Conclusion
The Constitution of Kenya, 2010, gives more clarity to the relationship of International law in
the Kenyan legal system, removing the need for “domestification” as per the pre-August 2010 status
quo. By and large, it steps up the incorporation of international law into the national legal system by
the specific provisions of Article 2 (5) and 2 (6) which affirm the position of international law as part
of Kenyan law.
42
Ibid.
18
Incorporation of international law is however limited as the Constitution, one: ascertains its
supremacy over all law, and, two, preserves the people’s sovereignty and power to enact laws
binding unto themselves through Parliament. This preservation of the role of Parliament extends
through the Treaty Making and Ratification Act, which ensures a decisive role to be played by
Parliament with regard to the Executive’s conduct in incorporating international law into Kenya
through ratification of treaties.
The Constitution also lays basis that certain provisions of international law, specifically with
regard to human rights, have to be enacted through the legislative process.
With consideration of the discussion presented in this paper, and in answering the initial
question posed in this assignment: as to whether Kenya has become a monist state, it would seem
more likely that the third school of thought, which considers the practical relationships that occur,
provides the best explanation. The theory of co-ordination states that States, in practice, do not lean
purely on either one side or the other, but apply aspects of both (monist and dualist) theories. And
this, I conclude, is the ensuing position in Kenya.
19
Bibliography
Abenga, E. B. N., 2011. The Place of International Law in the Hierachy of Valid Norms Under the 2010
Kenyan Constitution.
Brownlie, I., 2008. The Relation of Municipal and International Law. In: Principles of Public
International Law. New York: Oxford University Press, pp. 31-54.
Dixon, M., 2007. Theories about International Law in the National Legal System: Incorporation,
Transformation and Implementation. In: Textbook on International Law. New York: Oxford University
Press , pp. 94-97.
Kenya National Commission on Human Rights, 2011. Making the Bill of Rights Operational: Policy,
Legal and Administrative Priorities and Considerations, Nairobi: KNCHR.
Mwagiru, M., 2011. From Dualism to Monism: The Structure of Revolution in Kenya's Constitutional
Treaty Practice. Journal of Language, Technology & Entrepreneurship in Africa Vol. 3 No. 1, pp. 114-
155.
Omiti, H., 2012. The Monist Dualist Dilemma and the Practice of International Law in the Hierachy of
Valid Norms Under the Constitution of Kenya 2010.
Oppenheim, L., 1912. Relations between International and Municipal Law. In: International Law: A
Treatise. New York: Longmans, Green & Co., pp. 25-29.
Rigaux, F., 1998. Hans Kelsen on International Law. European Journal of International Law, pp. 325-
343.
20

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International Law

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Do articles 2 (5) and 2(6) of the Constitution of Kenya

2010 transform Kenya into a monist state?

Joseph Ndirangu Maina

Electronic copy available at: http://ssrn.com/abstract=2516706

Table of Authorities .......................................................................................................... 3

Theories about International Law in the National Legal System ......................................... 5

1. The Dualist School ....................................................................................................................... 5

Kenya’s Dualist Approach/ Anomaly before August 2010 .................................................................. 9

Electronic copy available at: http://ssrn.com/abstract=2516706

150 (1) of the Constitution.................................................................................................................... 18

Article 25 of the Basic Law of the Republic of Germany......................................................................... 8

Theories about International Law in the National Legal System

1. The Dualist School

2. The Monist School

Theories of co-ordination have developed, in principle, out of observation of the ways in

4. Implementation: The Doctrines of Incorporation and Transformation

By extension to the above-presented conflicts on the relationship between international law

Usually, where a country adopts the incorporation approach is because of some

The doctrines of incorporation and transformation are considered to be attached to the

The Domain of International law in Kenya: a transformation?

Kenya’s Dualist Approach/ Anomaly before August 2010

Subsequently, the transformative aspect in Kenya’s treaty practice, termed as

Implications of Articles 2 (5) and 2 (6) of the Constitution

 Implementing: Applies the doctrine of  Implementing: Applies the doctrine of

Requirement for a deliberate process versus automatic adoption

“Article 1 places a premium on the sovereignty of the people to be exercised through

Implementing article 2 (5) and 2 (6)

On obligation for municipal law to conform to international law

The second interpretation of Article 21 (4) is to facilitate the passing of legislation to

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