The application of international law in Kenya under the 2010 Constitution : critical issues in the harmonisation of the legal system

Under the 2010 Constitution, international law is deemed to be part of the Kenyan legal system, indicating a shift from the former dualist approach. Although international law is deemed to have direct application without the necessity of domestic legislation, there are problematic issues and ambiguities that have an implication for the extent to which international law may be applicable. It is necessary to examine these critical issues in order to provide a framework for a coherent understanding and application of international law in Kenya. There is, for instance, the question of whether the relationship is of a monistic nature, with international law having a normative precedence over all conflicting national laws including the Constitution, or reflects a harmonising approach which subordinates international law to the Kenyan Constitution. Formal legislation is essential in order to avoid interpretative differences by courts and state agencies. The supremacy of international law in its relationship with Kenyan statutes is necessary in the light of the progressive nature of the international human rights regime. In addition, the involvement of parliament in the making of international agreements requires to be balanced against the flexibility that is necessary for the effective performance of international obligations by government agencies.