I think one of the toughest presentations that I have ever made were the ones concerning my research paper. In my school, we call them research papers but I am still referring to a research project, undergraduate project, undergraduate dissertation and etcetera. During the defence of my paper, my panel and I could never agree on certain things, maybe because we are lawyers or maybe because I failed to see their point of view, or they mine. They almost always spoke in one voice, even when their explanation of the same was different. My panel constituted a senior counsel, a man of high social standing and another revered advocate with a doctorate in law. I put up such a fight that they almost always either smiled or were highly irritated by my presentation. The disagreements lasted throughout my presentation of averagely one hour and thirty minutes. This was a bit extreme, given that most of my peers did theirs under thirty minutes. Mine was so bad that I had to do my defence twice. Anyway, I was done and got an average of B, but for that performance I really thought I would get an A for effort at amusing or annoying; or a D for utterly annoying and hard to work with.

However, the one disagreement that I almost got heavily penalized for was refusing to have a comparative study of other select jurisdictions. Wait, before you judge me, hear me out … The reason I was so adamant was because I compared my research findings to international set standards instead of specific jurisdictions. My argument was that my research is going to be much more useful to the society if compared against international law and practice. My panel, utterly shocked by such an allegation, opined that that was not custom in research papers and that international law “forms part of the laws of Kenya”. I remember the entire time I was like, “What did you just say?” I did not disagree with that statement, I disagreed with its application in this particular situation, and the implied interpretation my panel was making. As a result, if international law forms part of the laws of Kenya, I could not be said to have done a comparative study. The reason for this particular disagreement was because while taking a public international law class, our professor encouraged us to read widely and during such reading, I stumbled upon, not only a monist and  dualist doctrine, but also a third approach.

The monist categorization considers international law and municipal law as part of the same body of knowledge; while the dualist categorization considers supranational law and domestic law as separate bodies of knowledge. Now if that was it, there would be no conflict as to interpretation but because both national and international systems may deal with the same subject matter, there is a possibility of conflict between their applications. Under the monist doctrine, if such a conflict arises, international law prevails but under the dualist doctrine the national courts would apply domestic law. It did not help that our own lecturers in campus did not have the same stand when it came to the matter, although majority referred to article 2 (5) and (6) of the Constitution.

So what is this third approach? It subscribes to the concept of having two separate legal systems (just like the dualist doctrine), but that these two deal with very different subject matters. Its proponents, Sir Gerald Fitzmaurice and Dionisio Anzilloti opined that the contradiction that would appear, would be either because the two sets of legal systems are really co-ordinated so that each has its own sphere of application and doesn’t encroach on the sphere of application of the other; or that one is applicable to the exclusion of the other. To this extent, Sir Fitzmaurice in a lecture to The Hague Academy of International Law opined that supremacy of either legal system does not arise from the content of the subject matter, rather, from the field of application of either system. Anzilloti explains further that both systems can never come into conflict, what conflicts, is a conflict of obligations or inability for a State on a domestic plane to act in a manner required by international law.

In law school, one is almost always never wrong given that any allegation is backed up by evidence of fact, law or reason; and so this third approach was my stand of the relationship between national and international law. However, I was not allowed to expound on this because of articles 2 (5) and (6) of the Constitution.  Article 2 (5) states that The general rules of international law shall form part of the law of Kenya while 2 (6) states that Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. Seems quite forward, right? Well, the courts have pronounced themselves on the matter as well and it is not that straightforward.

In the 2015 Court of Appeal case Karen Njeri Kandie v Alssane Ba and another, the court stated that it is no dispute that prior to the promulgation of the Constitution of Kenya, 2010, Kenya was a dualist state. This meant that the treaties it ratified were not self-executing and did not automatically become part of the law of Kenya. It required domestication by way of local statute. However, even before the coming into effect of the new Constitution, treaties and conventions not ratified could still be applied in Kenya where they were not in conflict with existing municipal law. This was demonstrated in the famous case of Rono v Rono (Mary Rono v Jane Rono & another (2005) eKLR, (2005) 1 KLR 538) that exhibited the application of international customary laws. In this case, the court stated that even though Kenya subscribes to the common law view that international law is only part of domestic law where it has been specifically incorporated, current thinking in the common law theory is that both international customary law and treaty law can be applied by state courts where there is no conflict with existing state law, even in the absence of implementing legislation. In David Njoroge Macharia v Republic (2011) eKLR, the court “was alive to the radical shift that the new Constitution portended” when it stated that Kenya is traditionally a dualist system. However, this position may have changed after the coming into force of our new Constitution.

From the foregoing case law, the Courts were of the opinion that the Constitution changed Kenya from a dualist state to a monist one. So what would become of the treaties and conventions ratified before the coming into force of the Constitution in 2010? The Court of Appeal in its judgment of the Karen Kandie case stated that they do form part of the laws for two major reasons:

  1. Starting from the Constitutional text in itself, it will be noted that there is no cut-off point The text does not of itself contain a futuristic imperative, nor does it directly or by implication suggest that such instruments as have been previously ratified are not part of the law of Kenya.
  2. Other than declaring the Constitution’s pre-eminence in Kenya’s judicial system, the listing of laws does not denote any prioritization … the treaties and conventions are at least at par with the laws enacted by Parliament.

Hierarchy of sources of law as previously interpreted was set correctly when the Court of Appeal affirmed the High Court’s decision in Diamond Trust Kenya Ltd v Daniel Mwema Mulwa HCCC No 20 of 2012: the highest rank the ICCPR can possibly enjoy is that of an Act of Parliament […] even if it ranks in parity with an Act of Parliament, it cannot oust the application of it. This sets the Constitution as the Supreme law (as per article 2(1) of the Constitution: This Constitution is the Supreme law of the Republic and binds all persons and all state organs at all levels of Parliament) and places at par international law (treaties and customs) with Acts of Parliament, cautiously stating even though at par, international law cannot oust an Act of Parliament.

While the courts set the record straight, the Supreme Court nevertheless pronounced itself on the matter and did so with finality. The honourable court explained what the phrase “shall form part of the laws of Kenya” meant by highlighting a United States Supreme Court jurisprudence; Paquete Habana Case (1990): where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations and as evidence of these, to the works of jurists and commentators who by years of labour, research and experience have made themselves peculiarly well acquainted with the subjects of which they treat […]. The court further stated that the phrase part of our law meant that domestic courts of law in determining a dispute before them, have to take cognizance of the rules of international law to the extent that the same are relevant and not in conflict with our Constitution, statutes or a final judicial pronouncement.

In interpreting articles 2 (5) and (6), the Supreme Court adopted two meanings. It explained that the articles are outward looking in that they commit the State to conduct its international relations in accordance with its obligations under international law. The articles adopted an inward looking where they require Kenyan courts to apply international law in resolving disputes before them, as long as the laws are relevant and not in conflict with the Constitution, local statutes or a final judicial pronouncement. In line with this, the court gave an example: […] where, for example, a court of law, faced with a dispute, the elements of which require the application of a rule of international law, due to the fact that there is no domestic law on the same, or there is a lacuna in the law which may be filled by reference to international law, the court must apply the latter, because it forms part of the laws of Kenya. In other words, the articles recognize international law as a source of law in Kenya.

The Court explained that Kenya is a member of the international community and as such, it is bound by its obligations under customary international law and its undertakings under the treaties and conventions to which it is a party. However, a State’s responsibility to give effect to international obligations does not fall under any particular institution of its government; international law does not require that domestic courts apply and give effect to international obligations. This again, sets correct the notion that domestic courts are bound to give effect to international obligations.

In its concluding paragraphs, the Supreme Court in this case, Mitu-Bell Welfare Society v Kenya Airports Authority, the Honourable Attorney General and the Commissioner of Lands; Initiative for Strategic Litigation (Amicus Curiae) (2021) eKLR stated that article 2 (5) and (6) have nothing or of little significance to do with the monist-dualist categorization. Most importantly, it DOES NOT transform Kenya from a dualist to a monist state as understood in international discourse […]. The court was of the opinion that, given the developments of contemporary treaty making, the argument about whether a State is monist or dualist is increasingly becoming sterile, given the fact that a large number of modern-day conventions and protocols are Non-Self Executing; which means that they cannot be directly applicable in the legal systems of state parties without further legislative and administrative action.

Hmm, it turns out that they were not right after all. There was conflict between the national laws used in my research paper and international law and practice, and if there is such conflict, the latter does not form part of the laws of Kenya. In the end, Kenya was neither monist nor dualist, seeing as the courts applied international law (treaties and custom) in almost the exact manner before and after the coming into effect of the new Constitution in 2010. This is what the Supreme Court meant by the article does not transform Kenya from a dualist to a monist state. Honestly, I could be wrong, but I am of the opinion that I was much closer to the truth than my panelists. Oh no, I was pretty much wrong about everything else, but I was right about this one, so I must blog about it. In the end, I did do a comparative study of Norway and South Africa for fear of penalization, but guess what, we still argued about it. In fact, we never agreed until the very end.

REFERENCES

  1. David Njoroge Macharia v Republic (2011) eKLR
  2. Diamond Trust Kenya Ltd v Daniel Mwema Mulwa HCCC No 20 of 2012
  3. Karen Njeri Kandie v Alssane Ba and another (2015) eKLR
  4. Mary Rono v Jane Rono & another (2005) eKLR; (2005) 1 KLR 538  
  5. Mitu-Bell Welfare Society v Kenya Airports Authority, the Honourable Attorney General and the Commissioner of Lands; Initiative for Strategic Litigation (Amicus Curiae) (2021) eKLR
  6. Paquete Habana Case (1990) United States Supreme Court
  7. Tim Hiller, Sourcebook on Public International Law (Cavendish Publishing Limited 1998)
  8. Malcom N. Shaw, International Law (6th ed, Cambridge University Press 2008)

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