Incorporating Transnational Norms in the Constitution of Kenya: The Place of International Law in the Legal System of Kenya

The face of international law has been changing. Historically, international law largely provided a mechanism through which states could preserve their sovereignty from external interference. More recently however, international law has tended towards a more co-operative engagement among states, through treaties and other international agreements. The result of this process has been the transference of norms by and among states, thereby increasing the range of shared transnational norms among the nations of the world. One result of this process has been the emergence of certain international minimum standards of conduct expected of individuals and states. The Constitution of Kenya provides for international law to form part of the law of Kenya. By this requirement the makers of the Constitution sought to make international legal norms part of the Kenyan legal system. Kenya should in essence conform to the minimum standards required by transnational legal norms. This article discusses the implications of the constitutional requirements for the application of transnational norms in the Kenyan legal system. Part I will address the theoretical bases for the application of international law in municipal law. Part II of the paper examines the nature and application of general rules of international law in Kenya. It will be contended that the widespread notion that the ‘general rules of international law’, expressed in Article 2 of the Constitution, refers to customary international law is technically erroneous. Part III discusses the place of treaties and conventions as sources of law in Kenya; while part IV examines whether domesticated treaties and conventions should be interpreted as domestic law, or as international law in their own right. Part V will comprise of concluding remarks.