from dualism - monism
Post on 05-Dec-2014
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Local Law prevails – 2(6)
Both – 50(2)(n),145(1),
150(1),152(6), 181
International law commitment-
2(5), 21(4) 51 (3) (b)
Diagram showing distribution of specific articles of the Kenyan constitution that support local law as well as affirm our commitment to international law
Motivations behind Kenya’s commitment to international law
International pressure Keep up with the spirit of
international Unity Universality of some laws Escape from local despotic rule To affirm our strategic position in
East African Politics
Kenya’s treaty practice in the 1963-2010 Constitution
On ad hoc basis(not predictable , not possible to know our ultimate stand.
Parliamentary action was not required for permissive treaties ratified that were consistent with the law in force.
Treaties that required an act or omission not expressly provided or authorized by the Law in force required an act of parliament to give it effect
Treaties that contained provisions that were not catered for by the law in force required an Act of parliament to give effect to such a treaty.
Legislature v ExecutiveArena: Treaty Domain
Executive did not need permission to ratify treaties but the legislature made amendments to other laws of Kenya to make them conform to the treaty.
It was a corrupted dualist system where the executive ratified laws to show Kenya’s commitment to international law but the Legislature amended and conformed this laws to ‘suit’ local conditions.
Instances of dualism’s methodology of transformation Transformation involves clothing
them domestically by making them part of the countries statutes
For instance,
Vienna Convention on
Diplomatic relations
Transformation
Privileges and immunities Act
Geneva Conventions
Transformation
Geneva Conventions
Act of parliament in
Kenya
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