An East African Federation and the Constitution of Kenya. A Critical Look at the Proposed Creation of an East African Federation Vis-a-vis the Constitution of Kenya

Abstract

Economic integration is in vogue in East Africa. The three East African countries, that is, Kenya, Uganda and Tanzania have entered into the Treaty for the Establishment of an East African Community, 1999.1 The objective of the East African Community is economic integration through the formation of a Customs Union, a Common Market, a Monetary Union and ultimately a Political Federation.2 The logic of political integration as a policy of economic integration is in ascendance in East Africa replacing the purely economic integration measures and rejecting an incremental process. The East African Political Federation envisaged would mean that the three East African countries would have common foreign and security policies and a central federal government under an East African President.3 An East African Federation is to be in place with a new Federal Constitution by 2010.4 A Political Federation as a policy of economic integration brings into sharp focus the issue of the constitutionality of such fundamental alteration of the constitutional order in Kenya. This is mainly because there are express and implied constitutional limits on the power of the Executive to enter into such a treaty and in the pursuit of economic integration. Under the operational East African Community certain constitutional conflict areas are already evident. In brief, these conflict areas; First, each of the three East African countries has a hierarchy of norms which emphasizes the supremacy of their respective Constitution. In Kenya, the Constitution as the supreme law, does not attempt to deal with treaty making and the effects that this would have on a treaty that has as its objective the altering of the laid down constitutional order. It follows, therefore, that even if the Treaty declares it is supreme over national.........................................................