Navigating past the ‘dualist doctrine’: The case for progressive jurisprudence on

the application of international human rights norms in Kenya

J Osogo Ambani

1Introduction and detailed context

Intergovernmental bodies such as the United Nations Organization (UN)1, the

International Labour Organisation (ILO)2 and the African Union (AU)3 have invariably

enacted human rights norms that now constitute ideal standards which municipal

jurisdictions have been invited to keep stead of. According to Shaw:

The United Nations system has successfully generated a wide-ranging series of international instruments dealing with the establishment of standards and norms in the human rights field4.

In the same vein, Mutua argues that

The United Nations and its Charter unleashed a torrent of norms, processes and institutions in human rights5.

It has been stated elsewhere that the doctrine of state sovereignty has waned almost in

the same proportion that the international stage has gained prominence as a medium

for enacting human rights norms.6 Efforts, for instance, by the UN are notable in this

regard. Indeed, since its birth on 24 October 1945, it became clear that norm setting in

matters concerning human rights would no longer chiefly be the domains of national

LLM (UP), LLB (UoN); Ambani teaches Jurisprudence, Gender, and International Human Rights Law at Catholic University of Eastern Africa1 The UN is established by the Charter of the United Nations, adopted by the San Francisco Conference on 26 June 1945; entered into force on 24 October 1945.2 The ILO was founded in 1919, in the wake of a destructive war, to pursue a vision based on the premise that universal, lasting peace can be established only if it is based upon decent treatment of working people. The ILO became the first specialized agency of the UN in 1946.3 Established by the Constitutive Act of the African Union; adopted in Lome, Togo, on 11 July 200 and entered into force on 26 May 2001.4 MN Shaw International law (1997) 225.5 M Mutua ‘Standard setting in human rights: Critique and prognosis’ (2007) Human Rights Quartely 552.6 See, Ambani JO Oval slides in triangular spaces? Anchoring national human rights institutions in ‘tripartite’ Commonwealth Africa, P37. Obtainable at https://www.up.ac.za/dspace/items. The introductory section borrows heavily from this contribution. See also, Odhiambo M et al Gender Dimensions in Management of Decentralised Resources in Kenya (2006) 42.

apparatus but, rather, also of the international community. This statement is vindicated

by the fact that the UN soon entrenched the Economic and Social Council (ECOSOC),7

which in turn hastily established the UN Commission of Human Rights (UNCHR).8

These institutions, together with the General Assembly and other affiliate bodies of the

UN, would then provide the grass on which human rights soccer would be played9. They

would constitute a forum parallel to that of national jurisdictions.

It is instructive that the UN Charter itself had paid sufficient tribute to the concept

of human rights. Preambular paragraph 2 of the Charter reaffirms ‘faith in fundamental

human rights, in the dignity and worth of the human person’ and ‘in the equal rights of

men and women.’ Article 1(3) of the Charter identifies one of the purposes of the UN as

being:

To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

In apparent furtherance of this mission, the General Assembly, in 1948, endorsed what

has been described as a landmark in human rights’ history, the Universal Declaration of

Human Rights (UDHR)10. This instrument represents a turning point for human rights

and has arguably since ossified into customary international law.11 This deduction is

only sound given the fact that:

… Governments continually (at international conferences, in presidential declarations, in ministers’ statements, etc) cite the Universal Declaration, and that States have even incorporated many of its clauses in their legislation ... 12

7 Established under art 7(1) of the Charter of the UN.8 The UNCHR was brought into existence through a resolution adopted on 21 June 1946 (documents E/56/Rev.1 and document E/84, para 4). 9 This is not to downplay the fact that other fora such as the African Union have also generated human rights norms.10 Adopted and proclaimed by the UN General Assembly in resolution 217A (III) of 10 December 1948.11 See, for instance, A Eide & G Alfredson ‘Introduction’ in A Eide & G Alfredson (eds) The Universal Declaration of Human Rights: A common standard for achievement (1999).12 JO Oraa ‘The Universal Declaration of Human Rights’ in FG Isa & K de Feyter (eds) International protection of human rights: Achievements and challenges (2006) 123.

This most influential international instrument was given legal effect in 1966 by two

treaties, the International Covenant on Civil and Political Rights (CCPR)13 and the

International Covenant on Economic Social and Cultural Rights (CESCR)14. These three

instruments constitute what has come to be known as the ‘International Bill Rights.’15

The Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW)16 is another UN Treaty whose prominence has been on steady escalation.

For instance, it has been noted that ’the outcome of years of discussions, debates and

ultimately compromises, the Convention asserts many of the fundamental rights of

women.’17 In yet another context, it has been described as constituting ‘a

comprehensive attempt at establishing universal standards on the rights of women’ and

further that it ‘can be regarded as a milestone on the path to the goal of standard-setting

for gender-based equality.’18

The same happy story of increasing significance could be said of the Convention

on the Rights of the Child (CRC),19 which boasts of a near universal endorsement.20

This Treaty has been praised by almost every other commentator on the subject.

Rehman has described it as ‘the most valuable treaty in the armoury of human rights

law with which to protect and defend children the world over.’21 According to Cantwell,

‘by its genesis, scope, content and very existence, this Convention ranks as a landmark

13 Adopted by the UN General Assembly in resolution 2200A (XXI) of 16 December 1966; entered into force on 23 March 1976; acceded to by Kenya on 1 May 1972. To date the Treaty has 164 parties. See http://treaties.un.org.14 Adopted by the UN General Assembly in resolution 2200A (XXI) of 16 December 1966; entered into force on 3 January 1976; acceded to by Kenya on 1 May 1972. To date the Treaty has 160 parties. See http://treaties.un.org.15 See A Eide ‘Economic, social and cultural rights as human rights’ in A Eide et al (eds) (1995) Economic, social and cultural rights (1995) 21.16 Adopted by the UN General Assembly in resolution 34/180 of December 1979. Entered into force on 3 September 1983; Kenya became bound on 9 March 1984. To date the Treaty has 160 parties. See http://treaties.un.org.17 See, Res. 5 (XXIV), 52 UN ESCOR Supp. (No 6), 70. 18 J Rehman International human rights law: A practical approach (2003) 350 – 351.19 Adopted by the UN General Assembly in resolution 44/25 of 20 November 1989. Entered into force on 2 September 1990.20 With the exception of Somali and the USA, all other states have signed the treaty.21 Rehman (n 16 above) 378.

in efforts on behalf of children’.22 Kaime has commented that the near-universal

ratification of this instrument,23

Affirms a shared recognition of the universality of children’s rights and indicates increasing support and acceptance by the world community of the need to promote and protect children’s rights.

Similarly, Brading has remarked that because the Treaty is signed and recognized by

more states than any other international human rights instrument; ‘there is a universal

understanding and acceptance of the concept of children’s rights’.24 It is, indeed, ‘the

most rapidly and universally accepted human rights document in the history of

international law.’25 It could be argued that this universal ratification signifies an

emerging norm of jus cogens.

It is now possible to describe the human rights movement within the UN as a

normative bandwagon, which has not been averse to novel interests. The UN human

rights system has been expanding to incorporate concerns of human rights import as

and when they garner international recognition and acceptance. A most recent entrant

in this bandwagon is the Convention on the Rights of Persons with Disabilities.26 This

instrument followed the International Convention on the Protection of the Rights of All

Migrant Workers and Members of their Families.27

These and other hallowed norms, set at the international level, are now ideal

standards to which national jurisdictions are expected to conform. In fact, since the days

of the UN Charter, states no longer have a mere moral obligation to implement

international human rights standards – they have a legal duty enforceable against

themselves. Viljoen reckons that:

22 S Detrick (ed) The United Nation’s Convention on the Rights of the Child: A guide to the ‘travaux preparatoires’ (1992) 27.23 T Kaime ‘The Convention on the Rights of the Child and the cultural legitimacy of children’s rights in Africa: Some reflections’ (2005) 5 African Human Rights Law Journal 222. 24 M Brading ‘Reconciling universality of children’s rights and cultural diversity’ (2006) in International Yearbook of Regional Human Rights, Master’s Programmes 308.25 LA Spits ‘Implementing the UN Convention on the Rights of the Child: Children rights under the 1996 South African Constitution’ (2005) Vanderbilt Journal of Transnational Law 853.26 Adopted by UNGA in December 2006. Entered into force on 3 May 2008; ratified by Kenya on 19 May 2008. To date the Treaty has 65 parties. See http://treaties.un.org.27 Adopted by UN General Assembly resolution 45/158 of 18 December 1990; entered into force on 1 July 2003 in accordance with section 49(1) thereof. To date the Treaty has 42 parties which figure does not include kenya. See http://treaties.un.org.

The ratification of international human rights treaties is of significance only if their provisions have an impact at the national level. Usually, the main obligation of a state party is to recognize the rights in the treaty and to give effect to them by adopting legislative and other measures28.

The law of treaties further presupposes that international standards entered into by

states are supposed to be observed in good faith29. Many human rights treaties have

taken it a notch higher by commanding states to adhere to their stipulations almost

expressly. The CRC, for instance, requires that:

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention. With regard to economic, social and cultural rights. States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation30.

This change of human rights strategy in terms of the forums and institutions involved

certainly calls for a realignment of structural and doctrinal items on the municipal front. It

is submitted here that, in Kenya, like in most of the common law jurisdictions, an item

that may require immediate consideration is the dualism doctrine. This is more the case

because the application of international human rights instruments in Kenya’s domestic

legal order is hardly guaranteed largely due to the premise that the State, being of

common law tradition, is dualist. By this is meant that, at least in the municipal domain,

international law does not automatically apply until it has undergone the process of

transformation. Herein lay the knotty obstacle bedevilling the realisation of human rights

in Kenya. It is this predicament that is discussed in the succeeding sheets of paper. The

contribution first traces the dualist doctrine to its cradle, the United Kingdom. It then

discusses the doctrine through the eyes of Kenya’s judicial precedents, and how it has

impeded the realisation of human rights, before suggesting reforms.

2 The dualist doctrine: The tradition and the cradle

Dualism is the flipside of the coin that is monism of which it has been written:

28 F Viljoen International human rights law in Africa (2007) 530. Emphasis added.29 According to article 18 of the Vienna Convention on the Law of Treaties, states have an obligation to uphold agreements they come into in good faith.30 Article 4.

In ‘monist’ states, following French constitutional law, once a treaty has been ratified and published ‘externally’, it becomes part of internal law. At least in theory, no legislative is action needed to lower the second storey level of international law norms to the ground floor level of national law31.

On the other hand, the dualist doctrine ‘is based upon the perception of two quite

distinct systems of law’, operating independently, and maintaining that “before any rule

or principle of international law can have any effect within the domestic jurisdiction, it

must be expressly and specifically ‘transformed’ into municipal law”32. Viljoen concurs

that international law and national law are fundamentally different in a dualist legal

system and ‘domestic law-making (enabling legislation) is required to ‘transform’ or

‘incorporate’ (‘domesticate’) international law into national law’33. By ‘transformation’ is

meant the ‘amendment of existing laws or the adoption of new domestic legislation’ in

line with a ratified treaty34. The process of ‘incorporation’ entails the wholesale inclusion

of an international instrument in national law35.

For most of Commonwealth Africa, the concept of dualism thrives. Of this

principle in the region it has been written:

In Commonwealth Africa, which on the whole is following the dualist theory, treaties do not become part of domestic law merely by virtue of their ratification. The explanation for this lies in the British constitutional tradition. The ratification of a treaty which binds the state at the international level (‘external ratification’) is a prerogative of the Crown. Once ratified, treaties have to be incorporated explicitly into the domestic legal system. This is in line with the system of parliamentary sovereignty, which has been developed as a cherished bulwark against the exercise of executive prerogatives36.

Constitutional and administrative law commentators, Wade and Bradley, have had

occasion to describe this English tradition, the cradle of the doctrine of transformation,

in the following succinct terms:37

… English law in general favours ‘dualism’, that is, a position in which the two systems of law (national and international) co-exist, but function separately; each has distinct purposes and the subjects of international law are typically sovereign

31 Viljoen (n 28 above) 531.32 Shaw (n 4 above) 104.33 Viljoen (n 28 above) 18.34 As above.35 As above..36 Viljoen (n 28 above) 535 – 536.37 AW Bradley & K Ewing (eds) Wade and Bradley: Constitutional and administrative law 326.

states, not individual persons. This co-existence does not guarantee harmony between the two systems.

Loveland argues that this position is ‘entirely consistent with the traditional Diceyan

theory’ and is ‘the political outcome of the 1688 revolution’.38 The rationale for this

doctrine is written in Britain’s own history, thus:39

The 1688 revolution produced an agreement between William of Orange and Parliament which provided that the constitutional role of the King’s government was to govern within the laws made by Parliament. The government itself could not create new laws simply by coming to an agreement with foreign countries. If one allowed that to happen, one would essentially be saying that it is government rather than Parliament that is the sovereign law-maker, as the government could bypass the refusal of the House of Commons and/or the House of Lords to consent to its proposed laws.

It follows then that, at least in the common law, ‘when new obligations are created by

treaty, legislation is needed for them to become rules of national law’40.

3 Dualism: The Kenyan imitation

As indicated in the preceding section, the doctrine of dualism evolved in England to

check the prerogatives of the Crown in foreign affairs, especially the power to make law

by entering into agreements with foreign states. Thus, commoners through the House of

Commons needed to validate such solemn commitments before they could apply in

England as law.

It is usually argued that the President in Kenya inherited all the prerogatives of

the Crown in relation to the State in 196441. A likely bequest is the prerogative enabling

the conduct of foreign relations in particular the signing of treaties on behalf of the State.

Should this be the case, in Kenya, like in England;

The Government is free to negotiate treaty and other relations with foreign nations, though the common law rule requiring incorporation by Parliament into domestic law applies, if such incorporation is necessary42.

38 I Loveland Constitutional law, administrative law and human rights: A critical introduction (2006) 35.39 As above.40 Bradley & Ewing (n 37 above) 326.41 YP Ghai & JPWB McAuslan Public law and political change in Kenya (1970) 254.42 Ghai & McAuslan (n 41 above) 256.

The original judicial authority for this principle (dualism) in Kenya was expressed in the

case of Okunda v Republic43 where a superior court of record limited the sources of law

in Kenya to those listed under the Judicature Act44 thus:45

The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with: a) The Constitution;b) Subject thereto, all other written laws …;c) Subject thereto and so far as those written laws do not extend or apply, the

substance of the Common Law, the Doctrines of Equity and the Statutes of General Application enforced in England on the 12th August 1897 and the procedure and practice observed in courts of justice in England at that date; but the Common Law, Doctrines of Equity and Statutes of General Application shall apply so far as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.

International law, not being one of the listed sources, therefore, has not independent

force of law. Therefore, unless domesticated through either a constitutional amendment

or an Act of Parliament, international law was held to have no legal effect in Kenya. In a

2001 jurisprudence, Pattni & Another v Republic,46 the High Court, again, established

that international norms, much as they could be of persuasive value, are not binding in

Kenya save for where they are incorporated into the Constitution or other written laws.

While making reference to the UDHR, the CCPR and the African Charter on Human and

Peoples Rights (African Charter),47 Githinji, Osiemo and Otieno JJ ruled that:

Although those instruments testify to the globalization of fundamental rights and freedoms of an individual, it is our Constitution as a law which is paramount. That is not to say, however, that Court (sic) cannot in appropriate cases, take account of emerging international consensus of values in this area.

While it is arguable that the Court conceded some ground in the latter decision by

demonstrating willingness to ‘take account of emerging international consensus of

values’ in the human rights realm, this apparently can only happen ‘in appropriate

cases’ bearing in mind that at all times the Constitution is paramount.

43 [1970] EA 512.44 Chapter 8, Laws of Kenya.45 Section 3(1).46 [2001] Kenya Law Reports (KLR) 262.47 Adopted by the OAU in Nairobi, Kenya, in June 1981 and entered into force in October 1986.

Three verifying questions have been suggested to test the extent to which

international human rights norms have been domesticated in African states: First,

whether international human rights norms are part of domestic law; second, where such

norms feature in the hierarchy of the municipal national legal order, in case they are

applicable; and third, whether domestic courts apply them in their decisions48.

As is evidenced by the two precedents discussed above, there is a genuine

temptation to answer the first question in the negative. It would appear international

human rights norms do not form part of Kenya’s domestic legal order. Norms enacted

elsewhere, it seems, must first go through either the process of incorporation or

transformation to have legal effect municipally. This is the path the CRC and the African

Charter on the Rights and Welfare of the Child49 have had, for instance, to walk. In this

regard, the Children Act is:

An Act of Parliament to… give effect to the principles of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and for connected purposes50.

However, it is becoming tenable an argument that the authority of the dualist principle

may be fast waning. This is because recent decisions have (even if tacitly) had regard

to international human rights norms. A notable authority in this respect is the case of

Waweru v Republic51, which, though it failed to state categorically whether Kenya

continues the dualist tradition, recognized that international customary law is of

influence. Nyamu, Ibrahim and Emukule JJ found that certain environmental principles

‘do constitute part of international customary law’ and that ‘courts ought to take

cognizance of them in all relevant situations’. Going by this position, at least

international customary law has a place in the legal system. But the regard had to these

norms is not one that would entitle them prominence. As demonstrated below, courts do

not seem to have relied on the norms ‘as the basis of a remedy’ (‘direct enforcement’)

but, rather, have utilized them as ‘an aid to interpretation’ of either the Constitution or

48 Viljoen (n 28 above) 530.49 OAU Doc CAB/LEG/25 9/49 (1990). Adopted in Addis Ababa, Ethiopia in July 1990 and entered into force on 29 November 1999.50 See, Preamble51 (2007) AHRLR 149 (KeHC 2007)

ordinary laws (‘interpretative guidance’)52. In Mary Rono v Jane Rono53 Waki JA was

thus candid:

I have gone at some length into international law provisions to underscore the view I take in this matter that the central issue relating to discrimination which this appeal raises, cannot be fully addressed by reference to domestic legislation alone. The relevant international laws which Kenya has ratified, will also inform my decision54.

Since international norms are not part of domestic law, the second and third tests are

superfluous. Even though international human rights norms generally do not have

automatic legal influence, their significance, in the limited instances where they are

applicable, could be ascertained from judicial precedent.

The Pattni case established that the Constitution is paramount. The Court of

Appeal in the case of Mary Rono v Jane Rono recognized that both international

customary law and treaty law can be applied by Courts, even in the absence of

implementing legislation, provided that there is no conflict with existing State law55. In a

subsequent 2008 decision, Re The Estate of Lerionka Ole Ntutu (Deceased),56 KH

Rawal J took occasion to explain that the position arrived at in the Rono decision was

inevitable given Principle 7 of the Bangalore Principles on the Domestic Application of

International Human Rights Norms, which states:

It is within the proper nature of the judicial process and well established functions of national courts to have regard to international obligations which a country undertakes – whether or not they have been incorporated into domestic law – for the purpose of removing ambiguity or uncertainty from national constitution – legislation or the common law.

In the RM v AG57 case, Nyamu and Ibrahim JJ were of the view that courts ought to

apply international norms only in instances where they are not in conflict with municipal

law. According to the judges,

… Where the national law is clear and inconsistent with the international obligation, in common law countries, the national court is obliged to give effect to

52 See generally Viljoen P 540.53 (2005) AHLR 107 (KeCA 2005)54 Emphasis added.55 See para 2256 (2008) eKLR.57 HCCC No. 1351 of 2002 (Nrb) (Unreported)

national law. And in such cases the court should draw such inconsistencies to the attention of the appropriate authorities since the supremacy of the national law in no way mitigates a breach of an international legal obligation which is undertaken by a country…

It follows that the place of international human rights norms, is beneath the Constitution

(which is paramount), lower than ordinary State laws, and, perhaps, at best, could be

useful where legislation is in abeyance or in removing ambiguities or uncertainty from

these municipal legislations. This low rank is not enviable, even in the quite progressive

jurisdictions where there is direct enforcement of international human rights norms. This

is because:

Although theoretically international law may also have an even lower place on the ladder, below ordinary national law, this possibility would negate totally the potential role of international law…58

4 Case for progressive philosophy on the application of international human

rights norms in Kenya

The scenario obtaining in Kenya (discussed above) easily puts to test Oppenheim’s

expression that ‘states show considerable flexibility in the procedures whereby they give

effect within their territories to the rules of international law’ and further that ‘while the

procedures vary, the result that effect is given within states to the requirements of

international law is by and large achieved by all states’.59

There does not seem to be concerted efforts by judicial and legislative authorities

to establish a consistent and beneficial jurisprudence on domestic application of

international human rights norms. The result has been that those within the borders of

the State have been forced to forego even the entitlements which have been voluntarily

ratified on the international scene. It does not help matters that international norms in

the realm of human rights are often progressive, have a richer menu of entitlements and

their implementation on the municipal stage is, ideally, to be pursued. It is perhaps in

this light that the Committee on Economic Social and Cultural Rights noted with concern

with regard to Kenya ‘that the Covenant rights have not been incorporated into the

58 Viljoen (n 28 above) 538.59 Shaw (n 4 above) 104.

domestic law and therefore are not directly applicable in the courts of the State party’60.

The Committee thus recommends that:

The State party includes economic, social and cultural rights in its new Constitution, with a view to incorporating the Covenant rights into domestic law and ensuring their direct applicability in the courts61.

This contribution makes the case for express abrogation of the Okunda philosophy to

yield ground for direct application of international norms in Kenya. This suggestion finds

vindication in the fact that the realities in England that necessitated dualism – such as

the 1688 revolution – have not obtained in Kenya. In addition Kenya is not a pure

parliamentary system. Even more ridiculous, the nature and character of prerogative

powers in England, which are at the core of the doctrine under review, are

conspicuously not identical to those in Kenya. For instance, the President may not have

all the prerogatives of the Crown in England. As Ghai and McAuslan succinctly point

out, there is a thick cloud of uncertainty regarding what exactly comprises prerogative

powers in independent Kenya.

… The Government has inherited all the prerogative powers that the Queen could exercise in relation to Kenya in 1964. It is not immediately clear what additional powers are bestowed by this provision. It has been held that since the prerogative is part of common law, and Kenya, during her dependent status had received the common law, the Queen’s prerogative powers were in some respect as extensive as in Britain, with minor exceptions, though in other respects they were even wider. But the prerogatives that the President can exercise on behalf of the Government are those that belonged to the Queen in relation to an independent Kenya, which were not as extensive… Again, the prerogative, being part of the common law, is liable to be replaced or repealed by written law. Thus, many of the former prerogatives are either regulated by law, or have been repealed62.

According to Ojwang, the Monarch’s representatives in Kenya, believed to have

bequeathed these powers, could not have been exercising the prerogatives in the

common law sense63. The colony and the protectorate were only extensions of the area

60 See paragraph 9 of the ‘Concluding observations of the Committee on Economic, Social and Cultural Rights’ with respect to Kenya during the Committee’s forty first session in Geneva between 3 – 21 November 2008.61 As above.62 Ghai & McAuslan (n 41 above) 255.63 See Ojwang J Constitutional development in Kenya: Institutional adaptation and social change (1990).

of effectiveness of British sovereignty, which itself revolved around the authority of the

Monarch. The colonial time thus created a condition in which the prerogative must bear

an appearance somewhat different from the common law understanding. Both Mitullah

and Ojwang are in agreement that at the end of colonialism, most of the powers held by

the Monarch as prerogatives were defined and specifically sanctified in the

independence Constitution.

The formal enactment of common law prerogatives effectively changed their character into a wholly novel species of prerogatives. They ceased to belong to the unwritten common law, and their scope was delimited by written law; such that they appear to fetter the sovereign’s discretion. If this interpretation is taken, then it must be the case that the prerogative had been transformed from common law character to constitutional prerogatives, or a special category of prerogative powers64.

It is equally true that:

Of the remaining prerogatives, it is arguable that many are, by their very nature, inapplicable in Kenya. If the prerogatives operate in Kenya by virtue of the reception of the common law, then they have to be suitably modified. It would therefore seem, for example, that the sole right to print or license others to print the Bible would be excluded. So would the other prerogatives arising from the Queen’s position as head of the official Church. The scope of prerogative powers is thus narrow65.

While it is conceded that the Constitution’s ‘laconic provisions’ and silences ‘with

respect of questions relating to diplomatic matters, international relations, war and

peace’66 in effect leave the governing principles to be shaped in accordance with

common law practices – the conclusion that the character of Kenya’s prerogative power

is not identical to Britain’s is inevitable. In the absence of the revolution and in the wake

of quite dissimilar prerogatives and constitutional structures, nothing warrants dualism in

Kenya.

But even if the tradition were to be upheld, there is a limited sense in which

international human rights norms could still be applicable in Kenya. It is instructive that

the common law tradition does not absolutely bar the application of international

64 WV Mitullah ‘Exercise of executive powers in Kenya: The case of the prerogative of mercy’, in M Odhiambo, O Ambani & WV Mitullah (eds) Informing a constitutional moment: Essays on constitution reform in Kenya (2005) 7.65 Ghai & McAuslan (n 41 above) 255, 25666 As above.

customary law. Rules of custom may have legal effect in England and therefore the

entire common law67. In respect of customary international law, English courts have on

occasions held that international law is part of the common law of England68 more so

where the custom in question is not in conflict with express provisions of municipal law.

On this approach:

… There is no need for any ‘transformation’: a national court may directly apply the customary international rule, provided that this would not be contrary to statute or a prior decision binding on the court69.

Should this thinking be accepted, a host of human rights instruments/stipulations such

as parts of the UDHR and CRC which are now considered customary international law

may find automatic application in Kenya.

To remedy the anomaly caused by the dualism doctrine, Kenya may need to

seize the ongoing Constitution reform process to secure cogent stipulations

guaranteeing direct application of international human rights norms on the municipal

domain. First, there is need, for instance, to authenticate the position stated by the Draft

Bill of the Constitution of Kenya 2002 (Draft Bill),70 and the Proposed New Constitution

of Kenya PNCK71 providing for international law as a source of law in Kenya. Thus,

(1) The laws of Kenya shall comprise –(a) The Constitution;(b) Acts of Parliament enacted under the Constitution;(c) African customary law;(d) Islamic and Hindu personal law;(e) The rules of law generally known as the common law, and the rules of law

generally known as the doctrines of equity as they relate to the practice and procedures of the Courts of Kenya;

(f) The East African Community Law; and (g) Customary international law and international agreements applicable to Kenya 72.

67 It is important to mention that the jurisprudence on this aspect is rather confusing, and the rule is not necessarily a predictable one. See R v Keyna (1867) 2 Ex.D 63; West Rand Gold Mining case (1905) 2 KB 391. See generally Shaw (n 4 above) 104 – 108.68 Bradley & Ewing (n 35 above); See also Trendtex Trading Corpn v Central Bank of Nigeria (1977) QB.; Triquet v Bath (1764) 3 Burr; Buvot v Barbuit (1737) Cases t. 69 Bradley & Ewing (n 37 above).70 See section 5.71 Drafted and published by the Attorney General pursuant to section 27 of the Constitution of Kenya Review Act (Cap 3A of the Laws of Kenya); Section 3.72 Emphasis added.

It is advisable that both treaty law and customary international law be made sources of

law. Express reference to customary international law is advantageous because:

As long as international human rights treaties do not enjoy universal ratification, treaties will be an incomplete means of attaining the goal of universal respect for human rights. Customary international law fills this gap, as it binds those states not party to a treaty – provided that the relevant norm has become a rule of customary international law73.

Thus, even where the Executive declines to ratify significant international human rights

instruments, those human rights items that have crystallized into customary

international law shall continue to bind the State.

To further ensure that Kenya upholds her international obligations, which in most

cases constitute ideal standards, stipulations akin to those provided for in article 29(6)

of the Draft Bill ought to be secured and preserved:

The Republic shall fulfill all its international obligations in respect of human rights and for that purpose-

(a) The Republic shall report on time to international human rights bodies on the implementation of human rights treaties;

(b) Draft reports intended for submission by the Republic to international bodies shall be published in Kenya for two months and facilities shall be provided for the public to discuss and debate them before the reports are revised and submitted;

(c) The Republic shall facilitate the submission of alternative drafts by civil society organizations to international human rights bodies; and

(d) The comments and recommendations of international bodies shall be disseminated to the public and the Government shall make a statement to Parliament on how it intends to implement those recommendations.

Second, the new Constitution should offer at least progressive Directive Principles of

State Policy (Directive Principles). Hoping to influence the initial Constitution reform

process, Kibwana and Ambani74 made the case for constitutional articulation of Directive

Principles in Kenya. The legal scholars argued that the facility of Directive Principles

could be seized to reinforce the next constitutional dispensation. Although Directive

Principles are usually not justiciable, nonetheless, the binding part of the constitution is

73 Viljoen (n 28 above) 26 – 27.74 See K Kibwana & O Ambani ‘The case for constitutional articulation of directive principles of state policy in Kenya’ in M Odhiambo, O Ambani & W Mitullah (eds) Informing a constitutional moment in Kenya (2005) 49.

interpreted in light of the principles thereby confirming their centrality within the

implementation of the State’s basic law.

A common law jurisdiction which has made proper use of the constitutional

device of Directive Principles is the United Republic of India. Through the Directive

Principles enshrined in India’s 1949 Constitution, the Judiciary has been able to

reinforce the application of fundamental human rights. The major lesson to be learnt

from India’s experience is that proper interpretation of the Directive Principles could

enable the application of international law in municipal jurisdictions. As accentuated

above, many states in the developing world – including Kenya - have not effectively

domesticated their international obligations, and as a consequence, such solemn

agreements do not have the desired impact. In India, that stalemate has found a

solution in Directive Principles. By dint of article 51 of the Constitution, which merely

encourages the State of India to foster friendly and peaceful relations with other states,

the Supreme Court has ‘read in’ the application of international human rights obligations

of India in municipal law. This is an innovative judicial step that kills two birds with a

single stone; it promotes the enforcement of human rights by using international

standards, which are usually superior; and it ensures that India fulfils her international

obligations. A provision such as the following, in the Preambular or Directive Principles

section, may easily achieve the desired effect:

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.

5 Conclusion

This contribution, apart from discussing the impact the dualism doctrine has had on

domestic application of international human rights norms, has also advanced the case

for a consistent and progressive philosophy on the application of international law in

Kenya. And there are two openings for progressive jurisprudence in this regard. First,

courts of superior record are implored to initiate deliberate efforts to expressly overrule

the Okunda philosophy. The new philosophy would then put into consideration the

emerging significance of the international scene in human rights norm setting. There is

need to reckon that the common law tradition does not absolutely bar direct municipal

application of international customary law and further that the factors which

necessitated dualism in England are not active in Kenya. Second, Kenya could seize

the prevailing transitional moment to review the Constitution and acknowledge

international (human rights) law as one of the sources of law municipally. In this respect,

the State could take the cue from South Africa where international law is an interpretive

tool.75 The facility of Directive Principles may also be handy.

For Kenyans to effectively realize the fairly generous entitlements ratified by their

State on the international stage, someone may need to slay the tradition called dualism.

BIBLIOGRAPHY

75 See, JD Bessler ‘In the spirit of Ubuntu: Enforcing the rights of orphans and vulnerable children affected by HIV/AIDS in South Africa’ (Winter 2008) Hastings International and Comparative Law Review 50 – 51.

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Kenya

Mary Rono v Jane Rono (2005) AHLR 107 (KeCA 2005)

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Pattni & Another v Republic, [2001] Kenya Law Reports (KLR) 262

Re The Estate of Lerionka Ole Ntutu (Deceased) (2008) eKLR

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Waweru v Republic (2007) AHRLR 149 (KeHC 2007)

United Kingdom

Keyna (1867) 2 Ex.D 63

Trendtex Trading Corpn v Central Bank of Nigeria (1977) QB

Triquet v Bath (1764) 3 Burr; Buvot v Barbuit (1737) Cases t.

West Rand Gold Mining case (1905) 2 KB 391

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African Charter on Human and Peoples’ Rights. Adopted on 27 June 1981 by the 18 th

Assembly of Heads of State of the Organisation of African Unity. Entered into force on 21 October 1986.

Convention on the Elimination of All Forms of Discrimination against Women. Adopted by the General Assembly through resolution 34/180 of December 1979. Entered into force on 3 September 1981.

Convention on the Right of the Child. Adopted by the General Assembly through resolution 44/25 of 20 November 1989. Entered into force on 2 September 1990.

International Covenant on Civil and Political Rights. Adopted by the General Assembly through resolution 2200A (XXI) of December 1966. Entered into force on 23 March 1976.

International Covenant on Economic, Social and Cultural Rights. Adopted by the General Assembly through resolution 2200A (XXI) of 16 December 1966. Entered into force on 3 January 1976.

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Adopted by the General Assembly through resolution 45/158 of 18 December 1990. Universal Declaration of Human Rights. Adopted by the General Assembly through resolution 217A (III) of 10 December 1948.

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Proposed New Constitution of Kenya, Drafted and published by the Attorney General pursuant to section 27 of the Constitution of Kenya Review Act (Cap 3A of the Laws of Kenya)