It used to be unusual to find specific mention of international law in national constitutions, including in our old Constitution. But, like many more recent documents, our constitution gives prominence to international law and does bring out its importance to what happens inside the country.
As the Constitution of Kenya Review Commission said, “The ways in which [international treaty] obligations are adopted and implemented by a state have profound consequences for national policy and institutions.”
WHAT IS IT?
A country’s national law applies
only within its borders (occasionally it may apply its law to its citizens
overseas for certain purposes). International law applies between states.
A country may make an agreement with just one other country. But many agreements are made between groups of countries and groupings of countries (like the United Nations, the East African Community, etc) may sponsor treaties that member countries may sign, or even have a body of their own that make laws that members are bound by.
You may be familiar with human rights treaties, environment treaties and trade treaties.
Kenya has also become party to treaties about cooperation on enforcement of criminal and civil, law, on copyright, workers’ conditions, shipping, refugees, warfare, tax and more. They number hundreds.
Treaties are signed by a government representative, but then must be ratified according to the country’s laws to make them binding.
This used to be done by the head of state with Cabinet approval. International law includes treaties that are precisely drafted and are supposed to be binding “declarations” and others that are more like guidance – sometimes called “soft law”.
Some standards and principles have become so generally accepted that they are treated as general principles of international law. Indeed, some are described as “customary international law” – including the principle of non-intervention in the affairs of another state.
WHAT HAS THE CONSTITUTION SAID?
The Constitution often sets international law as a standard that the country must follow.
“The State shall enact and implement legislation to fulfil its international obligations in respect of human rights and fundamental freedoms”.
The Constitution often expressly includes in its Bill of Rights provisions similar to international treaties.
Any special law to be applied under a state of emergency, must be consistent with relevant international law. Kenyan law about people who are imprisoned or for any reason detained must “take into account the relevant international human rights instruments”.
The President must ensure that “the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries”.
And every year must “submit a report for debate to the National Assembly on the progress made in fulfilling Kenya’s international obligations. This provision changed its character because in most drafts of the constitution, the “President” would have been a largely ceremonial one in a Parliamentary system.
The duty was part of the checks and balances designed for that system. But in 2010, the system was changed so that when the President makes his report – as he does – he is reporting on the performance of his own government.
This report is delivered as an appendix to his annual “State of the Nation” address. His actual address in 2024 merely mentioned it and the report itself for 2023 is encyclopaedic at 610 pages, boring for most people and naturally mostly on what has been done, not usually what has not. It is interesting to look at the section on eleven treaties that Kenya has signed but never ratified - included that on forced disappearances.
ARTICLE 2
The most striking provision is Article 2, which says that the general rules of international law and any treaty or convention ratified by Kenya are part of Kenyan law (in the case of treaties “under this Constitution”).
Some early constitution drafts suggested that international law was part of Kenyan law – particularly the Bomas Draft and the Wako draft (the one rejected in the 2005 referendum).
But it disappeared in the Committee of Experts’ first draft. There has been a big difference between countries that treat treaties as immediately part of their law and countries that need national law to make the treaty effective internally.
That is particularly important for human rights treaties. Kenya fits into the second category. However, Article 2 (5) and (6) appeared in the very final version – perhaps at the impetus of the Zambian international lawyer member of the CoE, Dr Chaloka Beyani.
It is controversial – does this mean that an international treaty takes precedence over an Act of Parliament – since both are under the Constitution? Had Kenya moved into the other category of countries? The Supreme Court has said that Kenyan courts must “take cognizance of rules of international law, to the extent that the same are relevant and not in conflict with the Constitution, statutes, or a final judicial pronouncement.”
The court was more welcoming to international law than some courts had been, but this does not put it on the same level as the rest of Kenyan law. I am not sure it has fully accepted what the CoE intended.
“Take cognizance of” does not, I think, mean “must apply” it. And “judicial pronouncement” sounds more like remarks than a binding decision on what the law is. The quality of lawyers’ arguments will be very important in how much impact international law has. Some drafts of the Constitution had that treaties must be approved by Parliament.
Interestingly it disappeared from the final Constitution. But if something will become law because it is in a treaty, then Parliament – Kenya’s law making body– ought to have a say.
Not surprisingly, in 2012, an Act was passed that says just that – treaties must be approved by Parliament. Unfortunately this does not seem to involve real public participation and understanding – as it ought.
THE IDEAS THAT GOT AWAY
The 2002 CKRC draft was very internationally oriented and much of this survived into later drafts. Under many treaties, governments must report on the government’s relevant achievements every few years. Before the Constitution, Kenya’s performance in human rights reporting was deplorable.
One proposal was designed to make this reporting more of a public event. It would have made government reporting to human rights committees a constitutional duty.
Government would have had to make its draft reports available for public comment for some time before submitting them, to facilitate public discussion and encourage alternative reports by civil society.
It would have had to disseminate the comments of the committees on Kenya’s human rights performance and make a statement to Parliament on how it intended to implement those recommendations.
These recommendations were in drafts up to the CoE’s first draft in 2009 and then disappeared. It must be said that Kenya’s performance has much improved – in terms of reporting that is, though government reports may be up to a year late.
And many civil society organisations do send their own reports. But the whole process could be better publicised and understood by the public. Certain specific requirements like ensuring that the rights of the child and the rights of refugees under international law are implemented in Kenya disappeared – but the duty still exists under the Constitution and international law.
Similarly, a duty to ensure that Kenya’s environmental law reflected international standards disappeared – at the hands of the Parliamentary committee that mutilated the draft in 2010.
The idea that citizens should understand and enhance Kenya’s place in the international community disappeared when that same Parliamentary committee removed the whole Article on citizens’ duties.
The CKRC draft said, “The Republic shall be a good citizen of Africa and of the world and commit itself to work for international peace and solidarity, equitable development and the promotion of human rights and fundamental freedoms.”
JILL COTTREL GHAI
@KatibaInstitute
Director, Katiba
Institute
