The Monist Dualist Dilemma and the Place of International Law in the Hierachy of Valid Norms under the Constitution of Kenya 2010

20 Pages Posted: 4 Jul 2012

See all articles by Herman Omiti

Herman Omiti

Moi University - School of Law

Date Written: July 3, 2012

Abstract

Domestic application of international law especially by domestic courts is an issue that has always raised divergent opinions from different quotas of legal scholars, domestic courts and human rights activists. Where as human rights activists have always advocated for international human rights norms to be applied universally by domestic courts owing to the universal nature of human rights, some courts especially in Africa have insisted on the procedural requirements for the application of these norms within their jurisdictions. In this age and time where the concept of monist dualist distinction is gradually loosing significance, there is need that the courts become alive to this fact and adjust appropriately especially where human rights are concerned.

Upon the promulgation of the new constitution, Kenya officially joined the group of African nations that have adopted international law friendly constitutions by including explicit provisions that allow international law to operate directly into their legal system once such instruments have been ratified by the state without insisting on domestication. The main reason behind the monist dualist distinction is the distinction between the executive and legislative functions. This is meant to ensure that the people are represented in the legislative process by their democratically elected representatives. This new development has thus raised concerns as to whether with this new dispensation the people will still be included in the process of adopting international law as part of the laws of Kenya as envisaged under Article 2(5) and (6) of the constitution.

To address these concerns, there is a draft bill on the ratification of international law that is awaiting debate by parliament. With this bill in the offing, there has also arisen the issue as to the place of international law in the hierarchy of valid norms in Kenya. The judiciary has shown the signs in its opinion by the high court that international law should be above the domestic legislations in this hierarchy. Whether or not this is the position is still subject to debate. Where as this seems to be a positive development especially in the field of human rights, it also raises questions as to the authority of our domestic legislations especially where the interest of Kenyans is at stake but the circumstances are such that only local legislations would be the best to remedy the situation.

This paper thus seeks to respond to some of these issues by discussing the effects of Article 2(5) and (6) of the constitution of Kenya in regards to the application and the place of international law in Kenya and then suggest the way forward.

Keywords: Monist, Dualist, Ratification, dispensation, hierachy, norms

JEL Classification: K00, K33

Suggested Citation

Omiti, Herman, The Monist Dualist Dilemma and the Place of International Law in the Hierachy of Valid Norms under the Constitution of Kenya 2010 (July 3, 2012). Available at SSRN: https://ssrn.com/abstract=2099043 or http://dx.doi.org/10.2139/ssrn.2099043

Herman Omiti (Contact Author)

Moi University - School of Law ( email )

1948
Eldoret, 30100
Kenya

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