The 2010 Constitution and the Application of International Law in Kenya: A Case of Migration to Monism or Regression to Dualism?
Africa Nazarene University Law Journal, Vol. 1, No. 1 (2013) 36-55.
20 Pages Posted: 23 Dec 2014 Last revised: 2 Aug 2016
Date Written: January 31, 2013
Articles 2(5) and 2(6) of the Constitution of Kenya, 2010, recognize international law as a valid norm within the legal system. Despite the Constitution establishing a basis for a more progressive application of international norms within the legal system, recent jurisprudence from a superior court of record seems to relegate the role of international legal instruments. This could contribute to an eventual regression of the role of international instruments to a position similar to the dualist approach under the repealed Constitution. The uncertainty and lack of consistency in the emerging jurisprudence on the position of international law within the legal system is aggravated by the fact that there is ambiguity in terms of the hierarchy of legal norms. There is the necessity for a superior position for international law within the legal system due to its more progressive human rights regime. However, the absence of statutory provisions or consistent judicial philosophy that unambiguously provides for the supremacy of international law over conflicting domestic legislation could contribute to the relegation of the role of international law. Given this backdrop, this article addresses the following issues: whether there is a normative and theoretical basis for the application of international law within Kenya’s legal system; whether the emerging jurisprudence with regard to the application of international law in Kenya is worthwhile; and whether there is a hierarchy of norms within the Kenyan legal system and the position of international law in such order.
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