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THE PLACE OF INTERNATIONAL LAW IN TRIAL ADVOCACY IN KENYA
BY
JOSPHAT NTHATA KAIBIRU
NAIROBI, JANUARY 2018
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Introduction
Kenya’s legal system and practice have undergone great changes in the last few decades as far as
the place of international law is concerned.
It is for this reason that a trial lawyer must understand the intricacies surrounding the application
of international law in litigation. A good grasp of the principle of international law and the
Kenyan jurisprudence obtaining before and after the promulgation of the Constitution of Kenya,
2010 is also important to a trial lawyer. This paper seeks to put into context, international law
and its application in Kenya.
Sources of international law
There are formal sources and material sources of international law. A formal source refers to the
legal procedures and methods for the creation of rules of general application legally binding the
persons or bodies at whom they are directed. On the other hand, material sources provide
evidence of existences of rules which when proved have status of legally binding rules of general
application. In other words, a formal source is that from which a rule of law derives its force and
validity. Material sources supply the substance of the rule to which the formal sources give the
force and nature of law. However, international law lacks the constitutional legislative machinery
akin to that of municipal law under which statutes are binding by reason of fundamental
supremacy. The sources are enumerated in article 38(1) of the statute of international court of
justice and include international conventions, international customs as evidence of general
practice accepted as law, the general principles of law recognized by civilized nations and
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judicial decisions and teachings of the most highly qualified publicists of various nations which
are subsidiary means of determining the rules of law. However, decisions of the international
court of justice are not binding except on the parties on the particular case to which the decision
relates.
1
In other words, they do not form the equivalent of municipal law precedents.
Treaties
A treaty is an international agreement entered into by two or more states or any other
international law person and governed by international law.
2
There are multilateral treaties which
are of general application also known as law making treaties and bilateral treaties also known as
treaty contracts that are entered into between two states to guide their conduct in relation to a
particular matter. Treaties may impose duties to enact legislation or offer areas of choice within
which parties are to apply the principles laid down therein. The principle of pactasuntservanda, a
party to a treaty must observe the treaty’s provisions in good faith.
3
This principle forms the
superstructure upon which contemporary international law depends. It is important to note that
treaties bind only the parties thereto.
4
Customs
Until recently, the rules of general international law were all customary rules.
5
Currently, most of
them have been modified to comply with contemporary international relations. For a custom to
give rise to a binding rule of international law, it must have been practised and accepted as
obligatory by the international community. A distinction is drawn between general and regional
1
Article 59 of Statute of International Court of Justice.
2
Article 2 of the Vienna Convention on the Law of Treaties, 1969.
3
Article 26 of the Vienna Convention on the Law of Treaties, 1969.
4
Ian Brownlie, Principles of International Law 7
th
edn, (Claridon Press, Oxford, 2008).
5
Ibid.
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customs.
6
General customs bind the entire international community while regional customs only
bind members of the region concerned. The jurisprudence of international tribunals such as the
international court of justice (ICJ) demonstrates that a custom does not need to have existence
for any particular duration in order to form part of customary international law. What is
important is that there must have been consistency and generality in the application of the
custom.
7
There must also be uniformity in the application of a custom as major inconsistencies
will prevent the formation of a customary rule of international law. However, there is no
requirement of complete uniformity, therefore, minor inconsistencies will not prevent the
formation of customary international law.
General Principles of Law
This refers to principles accepted by all nations in their domestic legal systems for example
certain principles of procedure, principles of good faith, principles of natural justice and the
principle of res judicata.
8
Schwarzenberger
9
sets out the criteria that must be met by a principle in
order to be considered as forming part of international law thus; it must be a general principle of
law as opposed to a legal rule of a limited functional scope; it must be recognized by civilized/
peace loving nations as opposed to barbaric/ savage communities; it must be shared by a fair
number of nations including the principle legal systems of the world such as the Anglo-Saxon or
the common law system.
6
Ibid.
7
North Sea Continental Shelf Cases: Germany v Denmark and Netherlands [1969] ICJ reports.
8
Martin Dixon, Textbook on International Law, 4
th
edn. (Blackstone Press Ltd, London, 2000)
9
Kenneth S. Carlston and Georg Schwarzenberger, 'International Law, Volume I--International Law as Applied by
International Courts and Tribunals' (1946) 46 Columbia Law Review.
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The Relationship Between International Law and Municipal Law of Kenya
Article 2(5), (6) of the constitution are of great significance in any discussion of the relationship
between international law and the municipal law of Kenya. Here, the constitution provides that
the general rules of international law shall form part of the laws of Kenya
10
and further that any
treaty or convention ratified by Kenya shall form part of the law of Kenya.
11
Generally,
international law governs the relations between states among themselves or between states and
recognized international legal persons. On the other hand, municipal law is the reflection of state
sovereignty and regulates the relationship between individuals among themselves and between
individuals and state organs. Prima facie, it would appear that the two systems are distinct and
parallel. However, in practice, it is common to find both international law and municipal law
governing the same subject. A good example would be the law relating to expropriation of
foreign owned assets where you find that both systems provide some standards to be complied
with and it is not common to find a conflict between the standards set by international law and
those set by municipal law. Besides, as international law expands in scope to embrace issues
such as environment, refugees, human rights and humanitarian issues, there is a corresponding
reduction in the areas of law that are preserve of municipal law. Consequently, there is a
relationship between the two systems of law which takes two main approaches.
10
Article 2(5)
11
Article 2(6).
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The Jurisprudential /Theoretical Approach
This relates to the question whether international law and municipal law are two distinct systems
of law or part of the same universal legal order. The discussion of this question is based on the
dualist or monist approaches.
Dualist Approach
This approach is propounded by Triepel and Anzilotti and is better known as the dualist doctrine,
under which municipal law and international law are two distinct and separate legal systems.
12
This doctrine is grounded on the view that international law governs the relations among states in
the international arena while municipal law governs the relations among citizens within a
particular state. On this basis, none of the legal systems has the power to create or alter the rules
of the other. When municipal law provides that international law applies in whole or in part
within municipal jurisdiction, this is merely the exercise of the authority of municipal law on
adoption or transformation of rules of international law.
13
In case of any conflict between
municipal law and international law in municipal courts, municipal law would take precedence.
Similarly, if the conflict is in an international tribunal, international law would be applied as it is
the only system of law recognized there. Triepel argues that while the subjects of international
law are states, the subjects of municipal law are individuals. Additionally, the source of
municipal law is the will of the state itself while the source of international law is the common
will of states.On his part, Anzilotti distinguished municipal law from international law based on
the fundamental principles by which each of the systems is conditioned. He argued that
12
Above n8.
13
Ibid.
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municipal law is premised on the grundnorm (fundamental principle) which must be obeyed
while international law is conditioned by the principle of pactasuntservanda which means that
treaties between states must be observed in good faith. As a result, the two legal systems are so
distinct that a conflict between them is impossible. International law can only be applied in
municipal courts after it has undergone the process of specific adoption or incorporation into
municipal law. This view appears to be in line with the Kenyan practice where any treaty must
be ratified in accordance with the provisions of the Treaty Making and Ratification Act.
14
Monist Approach
Hans Kelsen and Sir HerschLauterpachtare the main proponents of this approach known as the
monist doctrine.
15
Under this doctrine, the international law and municipal law are part of the
same universal legal order with international law being supreme even within municipal sphere.
16
They consider a supreme universal law as a more trustworthy repository of civilized values than
municipal law of a nation state. They argue that it does not matter whether the law binds states or
individual citizens because the state is made up of citizens anyway. Their view is that any
construction other than monism amounts to denial of the true legal character of international law
as the two legal systems interrelate and form part of the same legal structure.
17
Unlike the dualists who argue that municipal law is supreme in municipal courts, the monists are
divided on which system of law is supreme in municipal courts.
18
Hans Kelsen makes a structural
analysis of both municipal and international law by applying his doctrine of the grundnorm and
14
Act No. 45 0t 2012.
15
Ian Brownlie, Principles of International Law 7
th
edn, (Claridon Press, Oxford, 2008).
16
Ibid.
17
Ibid.
18
Ibid.
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concludes that both systems are supreme depending on the view taken.
19
However, his view has
been criticized on a number of grounds including the basis that if international law was not the
supreme order, then we primacy would be attributed to over a hundred separate systems of
municipal law, a situation that would lead to international anarchy. Additionally, there is a duty
on every state to bring its laws and constitution into conformity with international law as state
sovereignty is not absolute.
The Theory of Coordination
In order to avoid a dogmatic dispute between dualists and monists, Sir Gerald Fitzmaurice
sought to challenge their common premise that there exists a common field in which the two
legal systems operate simultaneously.
20
In his lectures delivered at the Hague Academy of
International Law in 1957, he considered that, “the entire monist-dualist controversy is unreal,
artificial and strictly beside the point because it assumes something that has to exist for there to
be any controversy at all-and which in fact does not exist-namely, a common field in which the
two legal orders under discussion both simultaneously have their spheres of activity.” According
to him, the two legal orders do not come into conflict as legal systems because they operate in
different spheres, each being supreme in its own field. Accordingly, municipal law and
international law can never come into conflict. However, there may be a conflict of obligations
or an inability on the part of a state on the domestic plain to act in a manner required by
international law. In such a case, if nothing is done or can be done to remedy the situation, it
does not invalidate the local law but the state will be considered to have violated its obligations
in the international plane and will be liable.
19
Ibid.
20
Ibid.
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The Practical Approach
In practice, the controversy as to which theory is correct is not necessary. Where there is a
conflict between international law and municipal law in international tribunals, the international
law takes precedent.
21
Therefore, a state cannot justify its non-compliance with international law
on the bases that its municipal law does not allow such compliance.
The State of International law in Kenya
A Historical perspective up to the Promulgation of the 2010 Constitution
Until 2010, International Law was not formally recognized as a source of law in Kenya. The
1962 Constitution did not make reference to International Law. Similarly, the Judicature Act
which lists the sources of law in Kenya did not recognize International Law as such.
Significantly, the Act lists the Constitution, Acts of Parliament, common law, doctrines of
equity, statutes of general application in force in England on 12 August 1897 and African
customary law as the only sources of law in Kenya.
22
Treaties could not therefore form part of
Kenyan law until they were incorporated or transformed into municipal law.
In Okunda V Republic
23
, the court held that International Law had no legal force in Kenya since
it was not included as a source of law under section 3 of the Judicature Act. However, this
21
The Alabama Claims Arbitration; USA V Britain [1872], UN Headquarters Agreement Case; UN V USA [1988] ICJ
Reports page 3.
22
Section 3 of the Judicature Act, Chapter 8 of the Laws of Kenya.
23
1970] EA 512.
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position did not obtain for long as the courts increasingly started applying International law on
condition that it did not conflict with domestic law.
24
In Pattni and Another vs Republic
25
, the Court held that international law could only form part
of Kenyan Law only after incorporation into written law of Kenya. The Court went on to state
that “although international norms could be of persuasive value it was not binding on Kenya
until it was incorporated.” Although it restated the ruling in Okunda‘s case the court admitted the
fact that international law was of use to courts.
The court referred to Universal Declaration of Human rights, International Covenant on Civil
and Political Rights and the African Charter on Human and Peoples Rights. It stated that
although these instruments testified to the globalization of fundamental rights and freedoms of an
individual it was the constitution which was paramount. The court however stated that it was not
precluded from taking into account emerging international consensus of values in the area of
fundamental rights and freedoms in appropriate cases.
The court in Waweru v Republic
26
held that certain environmental principles do constitute part of
international customary law and that courts ought to take cognizance of them in all relevant
situations.
Despite the courts adopting a progressive approach to International Law, its role remained
largely restricted as it was considered subordinate to all municipal laws.
27
24
Rono v Rono [2005] KeCA 16, RM and Another v Attorney General [2006] eKLR 12.
25
Pattni and Another v Republic[2001] KLR 262
26
Waweru v Republic ( 2007)AHLR 149(KeHC 2007)
27
Tom Kabau and ChegeNjoroge, The application of international law in Kenya under the 2010 Constitution: critical issues in the
harmonisation of the legal system, in The Comparative and International Law Journal of Southern Africa, (Institute of Foreign and
Comparative Law, November, 2011) at 297.
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The Current Perspective under the 2010 Constitution
The 2010 Constitution presents a shift in the state of International Law in Kenya by expressly
recognizing it as a part of the Kenyan Law. In particular, Article 2(5) provides that “the general
rules of international law shall form part of the law of Kenya.” Sub-article 6 thereof further states
that “any treaty or convention ratified by Kenya shall form part of the law of Kenya under this
constitution.” It is significant to point out that ratification of treaties in Kenya is governed by the
Treaty Making and Ratification Act,
28
which applies to all multilateral and some bilateral
treaties. Under the Act, parliament must approve all treaties specified in the Act before they can
be ratified.
29
The case of Kituo cha Sheria and Others v Attorney General
30
illustrates how the courts have
sought to apply customary International Law. The court, having appreciated that non-refoulment
was a corner stone of refugee law that had gained the status of customary international law,
stated as follows:“The drafting history from the previous drafts constitutions prepared by the
Constitution of Kenya Review Commission (CKRC) and the National Constitution Conference
(Bomas) from which the Constitution is derived shows the intent of article 2(5) is to incorporate
customary international law as part of the law of Kenya and therefore ‘general rules of
international law’ means customary international law.”
28
ActNo. 45 of 2012.
29
Ibid section 12(1).
30
Petitions no. 19 and 115 of 2013
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On the other hand, the application of a ratified treaty is exemplified in the case of Kenya Section
of the International Commission of Jurist v Attorney General & another
31
where a judge
issued a warrant of arrest against Omar Al Bashir, the President of Sudan, ordering the then
cabinet secretary for internal security to effect the arrest, failure to which Kenyan Section for
Jurist and any legal person who had the requisite mandate or capacity was at liberty to do so. The
warrant was issued after the ICJ Kenyan Chapter moved to court stating that despite the
existence of the warrant of arrest issued by ICC, police had failed to arrest and hand over
President Omar Al Bashir irrespective of the fact that he frequented Kenya.
They based their application on Article 2(5) which makes all treaties and conventions that have
been ratified by Kenya part Kenyan law. The international treaty that was invoked was the Rome
Statute which Kenya ratified on the 15
th
March 2010 and followed up on the act by
domesticating the Statute vide the International Crimes Act, 2008.
The constitution is the supreme law of Kenya,
32
and any law that is inconsistent with any of its
provisions is void to the extent of the inconsistency.
33
However, it is not clear as to whether or
not, International Law is superior to Kenyan Statutes. It has been argued that International Law,
especially when it relates to human rights, is more progressive and dynamic than municipal law
and hence should supersede statutory law whenever the two conflict.
34
Indeed, the court in the
Matter of Zipporah WambuiMathara
35
held that article 11 of the International Convention on
Civil and Political Rights which provides that nobody should be imprisoned merely on the basis
31
[2011] eKLR.
32
Article 2(1).
33
Article 2(4).
34
Above n4 at 303.
35
[2010] eKLR 4.
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of their inability to fulfill a contractual obligation superseded the provisions of the Civil
Procedure Act on civil jail.
All along, both before and after the promulgation of the Constitution of Kenya, 2010, the
application of International Law in municipal courts of Kenya has attracted a debate from both
academics and commentators as to whether Kenya is a dualist or a monist state. We now briefly
consider some of the arguments that have been put forward.
The Process of Treaty Ratification in Kenya
As noted above, article 2(5) of the constitution provides that general rules of international law
shall form part of the laws of Kenya. Article 2(6) further provides that any treaty ratified by
Kenya shall form part of the law of Kenya. It would appear that general rules of international law
are automatically part of Kenyan law by virtual of this article. However, in case of a conflict
with an Act of Parliament, it is not clear whether the general rules of international law would
prevail or the Act of parliament. The position of treaty law is more clear as treaties have to be
ratified by parliament, in the process, parliament would ensure that there is no inconsistency with
national statutes. The procedure for ratification of treaties is provided for under Treaty Making
and ratification Act.
36
The preamble to the Act reads, “An Act of Parliament 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.” Section 2 thereof defines “ratification” as the international act by
which the State signifies its consent to be bound by a treaty and includes acceptance, approval
and accession where the treaty so provides.”
36
Act No. 45 of 2012.
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The Act applies to both bilateral and multilateral treaties concluded by Kenya after its coming
into force where the treaty deals with:
37
the security of Kenya, its sovereignty, independence,
unity or territorial integrity; the rights and duties of citizens of Kenya; the status of Kenya under
international law and the maintenance or support of such status; the relationship between Kenya
and any international organisation or similar body; and the environment and natural resources.
These provisions are too wide and would cover close to all treaties. For instance, the provision as
to treaties affecting rights and duties of citizens of Kenya would be argued to cover every matter
because a treaty will always affect the rights of citizens whether directly or indirectly. There are
certain exceptions to which the Act does not apply. Firstly, a treaty relating to the adjustment,
alteration or variation of the present position of Kenya on matters of sovereignty, independence
and territorial integrity can only be approved in a referendum in accordance with Article 255 of
the Constitution.
38
Secondly, the government may enter into treaties without having to adhere to
the provisions of the Act provided that the treaty is bilateral and deals with necessary matters
relating to government business; or relates to technical, administrative or executive matters.
39
Initiation and Negotiation of Treaties
The power to initiate, negotiate and ratify treaties is vested in the national executive. However,
the power must be exercised in accordance with the provisions of the Act.
40
The responsibility
may be delegated to any relevant state organ or department.
41
In deciding whether to initiate the
treaty-making process or not, the national executive or the relevant State department is required
37
Section 3.
38
Section 3(3).
39
Section 3(4)
40
Section 4(1).
41
Section 4(2).
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to consider:
42
the need that the new treaty is to meet; the existing legal regime, including the
extent of its applicability to the perceived problem; the probability of reaching the required
measure of agreement on the solution aimed for; any relevant legislative efforts related to the
perceived problem; the optimal form for the proposed treaty; the likelihood that the proposed
treaty shall be accepted by a sufficient number of states, where the treaty is multilateral; the
anticipated time schedule for completing the treaty-making process; the expected costs of
formulating and adopting the treaty to Kenya and in formulating treaties relating to technical or
scientific problems, consider whether extensive scientific studies or research have been carried
out to determine the parameters of the problem and the lines of potential solutions. The national
executive or the relevant State department should record whether these conditions are met, and
then present a proposal to commence treaty-making for approval by the Cabinet.
43
The Cabinet is
required to consider and approve or disapprove the proposal for treaty making within a
reasonable time.
44
In negotiating treaties, the national executive or the relevant State department is bound by the
values and principles of the Constitution; and must take into account the regulatory impact of
any proposed treaty.
45
To this end, when appointing persons to negotiate a treaty, the national
executive or the relevant State department must appoint persons who are competent to undertake
such negotiations in the interest of the people of Kenya.
46
Ratification of a Treaty
42
Section 5(2).
43
Section 5(3).
44
Section 5(4).
45
Section 6(1)
46
Section 6(2).
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The government may propose to ratify a treaty, whether the treaty was initiated by Kenya or not.
In such a case, the Cabinet Secretary of the relevant State department should, in consultation
with the Attorney-General, submit to the Cabinet the treaty, together with a memorandum
outlining among other matters:
47
the objects and subject matter of the treaty; any constitutional
implications such as any proposed amendment to the Constitution and whether the treaty is
consistent with the Constitution and promotes constitutional values and objectives. Additionally,
the memorandum should include such matters as the national interests which may be affected by
the ratification of the treaty; obligations imposed on Kenya by the treaty; requirements for
implementation of the treaty; policy and legislative considerations; financial implications;
ministerial responsibility; implications on matters relating to counties; the summary of the
process leading to the adoption of the treaty; the number of states that are party to the treaty; the
views of the public on the ratification of the treaty; whether the treaty sought to be ratified
permits reservations and any recommendations on reservations and declarations; the proposed
text of any reservations that should be entered when ratifying the treaty in order to protect or
advance national interests or ensure conformity with the Constitution; and whether expenditure
of public funds will be incurred in implementing the treaty and an estimate, where possible, of
the expenditure.
Consideration by the National Assembly
If the cabinet approves the proposal to ratify a treaty, it is taken to the national assembly together
with the memorandum for further consideration.
48
The relevant parliamentary committee is
required, during its consideration of the treaty, to ensure public participation in the ratification
47
Section 7.
48
Section 8(1).
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process in accordance with laid down parliamentary procedures.
49
Thereafter, the National
Assembly may approve the ratification of a treaty with or without reservations to specific
provisions of the treaty.
50
Such approval should be communicated to the relevant cabinet
secretary who is required to prepare instruments of ratification within thirty days of approval by
the National Assembly.
51
All instruments of ratification of a treaty must be signed, sealed and
deposited by the Cabinet Secretary at the requisite international body and a copy thereof must be
filed with the Registrar of Treaties.
52