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Constitution of Kenya Review Commission
By Dr.A.O.Adede,Chairman & CEO L’ETWAL INTERNATIONAL(A Foundation for Law and Policy for Contemporary Problems)
1. This topic calls for a discussion on the question of how, in applicable cases. States achieve the incorporation into their domestic laws (domestication) of multilateral or bilateral treaties (international obligations) of which they are parties, so that the rights and duties contained in such treaties may become applicable and enforceable domestically in the States concerned.
2. By focusing on the question of domestic application of treaties, the framers of the topic have rightly put aside the issue of application of treaties to States internationally, since that issue has been well settled by the 1969 Vienna Convention on the Law of Treaties. That Convention, let us observe briefly, inter aila, established the means by which a State may express its consent to be bound by a treaty, which thereby becomes applicable to it at the international plane, by: "signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed."
3. Thus, limiting itself to the choices of means by which a State may accept international obligations arising from treaties, the Convention does not address the question of how States may then bring about the implementation domestically of the treaties, which they have made applicable to them internationally. The Convention rightly leaves this question to be settled by each State, in accordance with its legal system. Thus, "domestication" of treaties is a matter of national law and is not governed by international law.
4. Two major approaches, and some variations of them, may be identified with respect to the question of the status of treaties in domestic legal systems. Some States follow the dualist approach to this question, while others follow the monist approach, to which more must be said.
5. Under the dualist approach, treaties are part of a separate legal system from that of the domestic law: They do not form part of domestic law directly. Thus, under this approach, a treaty to which a State has expressed its consent to be bound does not become automatically applicable within that State until an appropriate national legislation has been enacted to give the treaty the force of law domestically. This is the so-
called "act of transformation", which has several ways for bringing about. One of them is the direct incorporation of the treaty rules through a drafting technique which gives the force of law to specified provisions of the treaty or indeed the whole treaty, usually scheduled to the transforming act itself. This is the approach which was inherited by Kenya and other commonwealth countries from the British practice, as the prime example.
6. Where the treaty-making power (negotiation and ratification) of the State is vested in a governmental body other than the legislature and there are no constitutional or specific legislature provisions for "democratic participation" in that process, such as parliamentary approval of treaties, the subsequent act of transformation plays an added role. The upshot is that, under the dualist approach, a State can indeed express its consent to be bound by a treaty first (ratification) without involving the legislature, thus making the treaty applicable to it internationally, then subsequently involve the legislature when transforming the treaty to make it enforceable domestically. Thus, Kenya may for example, begin discharging its obligations at the international plane (reporting requirements) under the Convention on the Rights of the Child (CRC) or under the Convention on the Elimination of all forms of Discrimination Against Women (CEDW) both of which it has ratified, but cannot at the same time, give effect to the rights based on these Conventions domestically because it has not yet "domesticated" them! This does not seem to be a desirable result.
7. Under the monist approach, traditionally a legal system of a State is considered to include treaties to which that State has given its consent to be bound. Thus, certain treaties may become directly applicable in that State domestically (self executing) and do not rely on subsequent national legislation to give them the force of law once they have been ratified by the State. "Where a treaty is thus considered to be "directly applicable", under this approach, it means that the domestic courts as well as other governmental bodies would look to the treaty language itself as a source of law."
8. There are, however, variations to this monist approach. There are what I may call the "extreme monist" States whose constitutions expressly provide that certain treaties are directly applicable in the State and that in such cases the treaties in question are deemed superior to all laws, including constitutional norms! Then there are the "moderate monists" whose constitutions provide for direct application of certain treaties, which may only havea higher status than later legislation but not superior to the constitution. Finally there are the "ambivalent monists", whose practice classifies certain treaties to be self-executing and therefore directly applicable. The courts of one of the prime example of this monist group have however ruled that "directly applicable treaty" has the same status as federal laws and statutes, and that the latest in time prevails. The result is that, later statutes in that jurisdiction would prevail over "a directly applicable treaty", and this has caused problems for the State in question.
9. It may be observed that, under the monist approach, the treaty-making process always involves a "democratic participation", such as parliamentary approval of treaties before the State may express its consent to be bound. Thus, a treaty would become directly applicable both at the international plane and at the domestic level, on the critical date of its entry into force for that State, following its ratification, acceptance, approval or accession by the States, in accordance with the relevant final clause of the treaty in question.
10. Let us also note that, in the earlier cited example of classification of treaties into self-executing and non self-executing has tended to generate domestic power struggle as to which treaties would be classified as directly applicable (self-executing) and which are not. The latter would require both the approval of the legislature and the subsequent act of transformation, thus resulting into a cumbersome double parliamentary action in the treaty-making process. Such a process which involves a double parliamentary action does not seem desirable.
11. Each of the these two approaches to treaty implementation has advantages and disadvantages which need to be carefully weighed in making the choice, as a matter of domestic law, as to which approach may best serve our people through an appropriate constitutional provision. We need to take into account the rich experience from the application of these two approaches, some of which are our own, and to state constitutionally our attitude towards the relationship between the treaty law and domestic law in our system, and the role of the legislature in the treaty-making process.
12. May we, in that connection, ponder the possibility of devising constitutional provisions intended to generate an "act of transformation" procedure, which would be both an expression of a parliamentary approval of a treaty and of its incorporation into domestic law, consequently permitting the State to express its consent to be bound by the treaty in question by the appropriate means.