1.0 INTRODUCTION
1.1 What is International Law?
International law is a set of rules and regulations or principles governing relations among states, between states and inter-governmental organisations, states and non-governmental organisations and individuals in instances where those entities possess international legal personality.
1.2 Sources of International Law
General Principles of Law
These are sources of law from which an international judge can make reference. Article 38 of the International Court of Justice Statute refers to general principles of law as not interpreted to mean general principles of any specific state but general principles common to the legal systems of the world.
Such general principles can be categorised into:
a) Procedural principles
-Evidentiary principles such as inadmissibility of circumstantial evidence.
-Reparation principles to the effect that any party who causes injury to another must pay damages to the injured party.
b) Substantive principles
These include principles such as Estoppel, Acquiescence and Equitable principles.
Subsidiary Sources
These provide a perspective as to what the law is rather than being a source of law themselves.
Article 38 (1) of the ICJ Statute refer to two subsidiary sources:
a) Judicial decisions
Under article 59 of the ICJ Statute, the decisions of the ICJ can only bind the parties to the dispute. ICJ decisions are however highly persuasive and the court makes reference to its decisions in resolving any current dispute before it. Decisions of other international tribunals and decisions of national courts considering any questions of international law may also be influential depending on the quality of analysis involved.
b) Teaching and Writings
The ICJ rarely refers to the works of publicists. However, it is common practice for the court to refer to the works of the International Law Commission (ILC) which is a body constituted under the United Nations Charter to help in codification of rules of international law. ILC drafts on emerging rules of international law which offers important guidance to the ICJ when determining questions if international law.
Soft Law
Soft law refers to those instruments which are not legally binding but are in themselves possible indicators that a rule of international law is developing or emerging in any given area.
Use of Jus Cogens or Peremptory Norms
These are rules or norms or principles accepted by the international community as a whole as norms from which no derogation is permitted. They can only be altered by another norm possessing the same character. Every state is under obligation to obey and no state may act in contravention of such norms. They create an erga-omnes obligation on all members of the international community and they include prohibition against genocide, prohibition against torture and prohibition against crimes against humanity.
2.0 APPLICABILITY OF INTERNATIONAL LAW IN KENYA
2.1 The Basis for Application of International Law
The Constitution of Kenya, 2010
According to HLA Hart, valid laws in every legal system are identified through an established ‘rule of recognition.’1 In the context of Kenya, the Constitution of Kenya 2010 forms the basis for all legal validity and it is therefore the rule of recognition. In pursuance of this mandate, the Constitution lists the general rules of international law as forming part of the law of Kenya.2 Additionally, it also states that ‘any treaty or convention ratified by Kenya’ is part of Kenyan laws.3
Reference to international law as part of the law of Kenya is fraught with some patent and latent problems that may frustrate the attainment of the benefits that international law may provide in the domestic sphere. This is because, aside from merely asserting its own supremacy over other norms, the Constitution does not create a hierarchy in relation to these other sources of law. This
1HLA Hart, The Concept of Law (1961) pp92-93
2 Article 2(5)
3 Article 2(6)
is left for the courts to determine, which has seen the emergence of contradictory jurisprudence in that regard.
In relation to the phrase ‘general rules of international law,’ Ambani and Mbondenyi in their book The New Constitutional Law of Kenya offer guidance by stating some of the rules to which article 2(5) of the Constitution may refer. These include, inter alia, principles of sovereign equality of states, territorial integrity, customary international law and puncta sun savanda.4
Statutes
The Treaty Making and Ratification Act5 was enacted to give effect to the provisions of article 2(6) of the 2010 Constitution and it lays down the procedure to be followed in making and ratifying treaties. The Act applies to all multilateral treaties and specific bilateral treaties.6
The Act provides that Parliament must approve treaties before ratification can be done. Public participation is also to be undertaken in the ratification process.7
2.2 The place of International Law in Kenya; Is Kenya Monist or Dualist?
There are two main doctrines that guide thought on the relationship between municipal and international law. These are the monist doctrine and the dualist doctrine. Dualists emphasize on the difference between municipal and international law and require translation from the latter to the former. Dualism perceives municipal law and international law as two distinct systems of law which operate separately. In dualist states therefore, for an international law rule or principle to have effect within the domestic jurisdiction, it must be expressly and specifically ‘transformed’
4 Mbondenyi M.K. and Ambani J.O., The New Constitutional Law of Kenya; Principles, Governance and Human Rights (2012) Claripress Ltd: Nairobi. Pp24
5 Act No. 45 of 2012
6 Section 3(2)
7 Section 8(3)
into municipal law.8 Dualism is therefore exemplified by the transformation of international laws into domestic legal system through domestication of ratified international law by means of enactment through parliamentary legislation. Per Nicholas Wasonga, before the promulgation of the new constitution Kenya took a dualistic approach when dealing with the application of international treaties to its domestic legal system.9 This position has been underscored post-2010 in the case of Beatrice Wanjiku & Another v The Attorney General & Another10 where the court held as follows;
“Before the promulgation of the Constitution, Kenya took a dualist approach to the application of international law. A treaty or international convention which Kenya has ratified would only apply nationally if parliament domesticated the particular treaty or convention by passing the relevant legislation. The constitution in particular articles 2(5) and 2(6) gave new colour to the relationship between international law and international instruments and national law.”
The court in this case pronounced that Kenya has effectively transited from the previous dualist doctrine by virtue of the 2010 Constitutional provisions on the place of international law. Kenya is therefore not a dualist state.
The question then becomes whether Kenya is monist.
Monism denotes an instance where both international laws and municipal laws exist as a part of a single legal order. It involves a direct incorporation of ratified international laws treaties in a state’s domestic legal system. However, the theorisation of monism is not without controversy.
8 M N Shaw, International Law (1997) 104 as cited in Mbondenyi and Ambani (n4 above).
9Wasonga Nicholas. “The 2010 Constitution and the hierarchical place of international law in the Kenyan domestic legal system: A Comparative Perspective.” (2013) 2 AHRLJ 415-440
10 [2012] eKLR
Different scholars have outlined divergent views as to what constitutes monism and this raises pertinent issues in relation to characterisation of legal systems as monist.
In the traditional sense, monism refers to situations where international law and municipal law coexist within the same legal order with international law being superior over all domestic laws-the basis for affording supremacy to international varying from scholar to scholar.11 To temper this extreme theorisation, Hans Kelsen postulated that in monism, there could emerge two situations- one being that domestic law has supremacy over international law while the other being that international law has supremacy over all domestic law.12 This theorisation presupposes a hierarchy of norms in which international law occupies a well-defined place.
The questions of hierarchy of norms in Kenya have been the subject of debate with most scholars agreeing that, while it would be desirable to have one, the Constitution of Kenya 2010 does not provide the same, only that the Constitution is supreme.13 Kenyan courts have also had occasion to consider the question of hierarchy. In The Matter of Zipporah Wambui Mathara14 the Court gave primacy to international law, giving precedence to Article 11 of the ICCPR over provisions of the Civil Procedure Act. The Court took the view that applicable international law overrides contrary local legislation. While this judgment endeavours to shed light on the place of international in the Kenyan legal system, it was subsequently undermined in the case of Beatrice Wanjiku and Another v. Attorney General and Another where the court held the opinion that international legal provisions are first of all ‘subordinate to and ought to be in compliance with the Constitution’ and again that international law did not trump conflicting domestic law. The
11 Chukwuemeka Okenwa, ‘Has the Controversy between the Superiority of International Law and Municipal Law been resolved in Theory and Practice?’ (2015) Journal of Law, Policy and Globalisation Vol. 35
12 Hans Kelsen, Principles of International Law 2nd Ed. Pp580
13 https://africlaw.com/2015/08/17/tp-acieve-transformation-kenyan-law-needs-to-shun-a-hierarchy-of-sources/ accessed on 14/2/2017
14 [2010] eKLR
Court therefore pronounced itself by stating that it is the extent of applicability of either of those regimes and an interpretation that best suited the enforcement of a fundamental right that ought to carry the day. It stated that our constitution did not carry an ipso facto treaty supremacy and that the ICCPR was at best ‘an interpretative tool’ since the drafters of the 2010 Constitution could not have intended for international law to override laws enacted by elected representatives under article 94.
The problems highlighted above pose a serious challenge as to whether Kenya can be considered monist. However, it has been suggested outside court that Kenya is monist. The Immediate Former Chief Justice Dr. Willy Mutunga stated in his “Keynote Speech for the Africa and International Law Conference” that Kenya currently subscribes to monism.15
Owing to the difficulties associated with the traditional understanding of monism, a modified theory arose as a harmonisation theory, referred to as the Theory of Coordination.16 This theory is believed to be a modification to monist theory. John Dugard argues that this theory is borne from the realisation that it is problematic to assume that there can be clear-cut supremacy between international law and municipal law since international can never fully supersede all domestic laws.17He acknowledges that in a harmonised state, both municipal laws and international laws are part of the same legal system but there is no clear-cut supremacy; instead, international law is placed within the legal norms, often within no hierarchical order in relation to domestic laws.18
15 https://kenyalaw.org/kenyalawblog/keynote-speech-for-the-africa-and-international-law-conference/ accessed on 14/2/2017
16 Chukwuemeka Okenwa, (n11 above)
17 John Dugard, International Law: A South African Perspective 3rd Ed. Pp47-48
18 Ibid.
2.3 The United Nations Basic Principles on the Role of Lawyers
It is by virtue of article 2(5) and (6) of the constitution of Kenya that application of international law is envisaged. General rules of international law form part of the law of Kenya and any treaty or convention ratified shall form part of the law of Kenya.19
In determining the scope of international trial advocacy in Kenya, the UN Basic Principles on the Role of Lawyers plays a major role in ascertaining the rights of legal representation and the fact the government should facilitate funds and ensure that the right to legal representation is fully satisfied.
In the case of David Njoroge Macharia v Republic20 the judges of the court of appeal determined that the UN Basic principles on the Role of lawyers are part of the instruments that are relevant to the access of state funded legal counsel. That government shall ensure the provision of sufficient funding and other resources of legal services necessary to the poor and the disadvantaged.21
The UN Basic Principles on the role of lawyers propounds on the international norms that relate to the right of independent counsel. They were unanimously adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders in Havana, Cuba 7th September 1990.
On subsequent events the United Nations General Assembly “welcomed” the principles in their Human rights on the administration of justice resolution.22
19 Article 2 (5) and (6) of the Constitution of Kenya.
20 [2011] eKLR
21 Ibid.
22 www.advocatenvooradvocaten.nl, seen at 6:43p.m, 14th February 14, 2017
However, the main purpose of the Basic Principles was engineered to guarantee the functioning of lawyers according to article 1623 of the charter by ensuring that governments or rather states promote the proper role of lawyers and ensure that they function without any improper interference, hindrances or threats.
Also, the drafting of the charter aimed at strengthening international and regional cooperation in the fight against crime but more importantly fulfil the requirement of all persons accessing legal services.
There are several players that are subject to the guidance of the basic principles. Hence, when defining the status of the principles it may not only be limited to lawyers but also to other judicial persons and bodies such as judges, prosecutors, members of the executive, the legislature and the public in general.
In addition, the principles are deemed to be soft law, that is to mean they are not legally binding but they are held in high regard and are broadly accepted; for instance, the United Nations, several Non-Governmental Organizations and (regional) courts of justice refer to the basic principles and in furtherance some consider the principles qualifying as material source of law or a reflection of international customary law.24
Despite, major issues of concern arise in the place of international trial advocacy in the 21st century, due to a lack of participation in transnational dispute resolution. Hence for this reason, definite questions such as ,whether there is really an international trial lawyer is one of them and if so how does he or she look like and where does the lawyer practice their profession?
23 Basic Principles on the Role of Lawyers, adopted by the Eighth U.N. Congress on Prevention of Crime and
Treatment of Offenders, 7th September 1990.
24 Ibid 1.
Again does the lawyer speak English or is the trial lawyer multilingual, and if so other than English what other language must the trial lawyer speak in?
In regard to education, must the place of education be considered and must the lawyer have a license to dispense his services? And if so, who has the authority to grant the license and what are the professional rules applicable to admission and service as an international trial lawyer?
It is therefore in my view that all this questions are debatable, but in a bid to bring clarity and develop the legal profession the 21st century international trial lawyer must be aware of such challenges but act rationally in establishing systems and core principles that will accommodate and regulate the massive changes presented by the 21st century global village and disenthrall from past dogma but yet still remain true to the noble profession.25
25 Joseph M. Matthews, Esquire, Trial Advocacy in the 21st Century Global Village, The International Academy of
Trial Lawyers Dean’s Address, 5th April 2013.
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