Dualist or Monist: Intricacies of treaty practice in Kenya

Abstract

There are two main schools of thought regarding the relationship between international law and municipal law. On the one hand is the monist theory which argues that both international law and municipal law regimes belong to the same legal system. On the other hand is the dualist theory that views international law and municipal law as two independent legal systems. The Independence Constitution did not contain any express provisions on the relationship between international law and the municipal law of Kenya. The Constitution of Kenya (2010) provides that the general rules of international law form part of the law of Kenya. This scenario has necessitated the need for an examination of Kenya’s stand on the relationship between its municipal law and international law. While some authors have concluded that the Constitution of Kenya (2010) has created a shift from the old dualist practice to a monist one, others have maintained that its provisions do not clearly define Kenya as being either dualist or monist. The problem of the study is the need to investigate the real meaning of the constitutional and legal framework relating to the treaty practice of Kenya. The study analyses Kenya’s treaty practice from independence to date. It outlines the relevant constitutional and legal provisions and looks at the policy framework relating to treaty practice to establish the parameters of treaty practice in Kenya. It also discusses the different approaches to treaty practice exhibited by the different administrations and analyses the policy governing treaty practice in Kenya over the said period. The study further examines the complexities that arise from the treaty practice and their impact on Kenya’s diplomacy and foreign policy. The study utilizes relevant treaty practice experiences of the United States of America to highlight those intricacies of treaty practice in Kenya. Finally, drawing from the discussions, the study concludes that Article 2 (6) of the Constitution does not unequivocally make Kenya a monist state with respect to treaty practice. It concludes that Kenya’s current treaty practice is a hybrid of both dualism and monism. Further, the study finds that the existing policy framework is insufficient to address the intricate nature of treaty practice in Kenya. The study also finds that the diplomacy and foreign policy of Kenya has suffered and will continue to do so in the absence of a coherent policy framework governing her treaty practice. In conclusion, the study proposes that a definition of Kenya’s treaty practice as being either monist or dualist is not overly as important as the need to align that practice with her diplomacy and foreign policy.