Like the contentious Al Bashir visit, the naming of 6 suspects by ICC Prosecutor Ocampo has evoked very disturbing comments about the new constitution.
For Kenyans to reap fully from the new constitution, we must not interpret the constitution in a manner that undermines rights and offends against the naked letter of the Constitution. Judge Musinga’s recent ruling on boundaries is a good example (jurisdicction).
But we must also not interpret it too restrictively, and without much reflection because this would make it difficult for government to perform its functions, including engaging Kenya in international affairs. The suggestion by some MPs and lawyers that we need a referendum to withdraw from an international treaty – in this case the Rome Statute – is a perfect example.
I suspect that these views are largely due to limited understanding of relevant international law and comparative experience.
I have commented before (during the Al Bashir saga) on the place of international law under Kenyan law, in view of our new constitution. I feel constrained to revisit some of my arguments in view of the current furore.
The relevant parts of the Constitution, articles 2(5) and 2(6) respectively read as follows:
The general rules of international law shall form part of the law of Kenya
Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this constitution.
These two provisions simply regulate the relationship between domestic/national law and international law. They have nothing to do with the supremacy of the constitution. The two provisions were placed in the wrong section of the constitution by COE, but it is not fatal. On the naked letter of those provisions, as well as comparative experience, they need not be interpreted differently simply because they are in the section ‘supremacy of the constitution’.
Contrary to views expressed by by Hon Mutula, Karua, Mungatana and Muite and echoed elsewhere, a plain reading of 2(5) and 2(6) shows that both general rules of international law (custom) and treaties (conventions) form part of Kenyan law and NOT part of the constitution.
This is not an academic distinction. This reasoning is in line with major legal traditions in the world, including our own, unless we want to invent a new tradition which would make it difficult for us to engage internationally. There are other serious implications, but the main one is that Kenya can only join or withdraw from any treaty – even minor bilateral treaties – by approval of a referendum! Even as a matter of pragmatism and policy, it is the wrong interpretation, in view of the number of agreements Kenya signs with foreign nations, and the expense of running a single referendum! Our engagement internationally would suffer significant, unwarranted hiccups......
The only difference is between custom and treaties is how the two categories of rules of international law become part of Kenyan law.
General rules of international law in article 2(5) above refers to customary rules of international law. These are rules over which there is widespread, if not total agreement by states eg the prohibition of genocide, war crimes and crimes against humanity; the equality of states; immunity of heads of states and foreign ministers when travelling abroad; and the prohibition against use of force.
These customary rules, are superior rules and automatically form part of Kenyan law. No legislation is needed to make customary rules part of Kenyan law. Because some customary rules are contained in treaties, once Kenya ratifies an international agreement ie agrees to be bound by it, only the customary rules in that treaty apply immediately. All other rules of international law ie non-customary rules contained in treaties and conventions (art 2.6 above) only form part of Kenyan law when domesticated ie, applied through an Act of Parliament.
The words ‘under this constitution’ at the end of art 2(6) do NOT mean that treaties like the Rome Statute form part of the Constitution. And this is where the MPs named above get it completely wrong. ‘Under this constitution’ means ‘as provided by the constitution’. In other words, the constitution provides how treaties and conventions form part of Kenyan law. Note the difference with article 2(5) which omits ‘under this constitution’, because custom forms part of our law or is incorporated automatically in Kenyan law when a new international custom emerges.
Our constitution provides how treaties form part of Kenyan law by vesting full legislative powers in Parliament. In terms of our constitution, the executive negotiates, ratifies and withdraws from treaties. Parliament translates treaties into Kenyan law by passing legislation. It also has full powers to repeal or amend any law it makes, including the International Crimes Act.
We can question Parliament’s motives or that of the movers of the motion. We can oppose withdrawal from the ICC for other reasons, including the imperatives for justice. And I understand those opposed to repealing the International Crimes Act or withdrawing from the ICC to be saying that it is not advisable, and that it is in fact duplicitous to make this attempt. But it is very strange indeed to suggest that it is unconstitutional for parliament to do legislative work! Under the old and new constitution, and the constitution of any country, it is the work of Parliament to make and unmake laws! In fact, we would be acting unconstitutionally if we prevented Parliament engaging in lawmaking through various mechanisms, including motions.
Constitutionally, parliament’s powers are limited to legislating, which includes translating treaties into Kenyan law. But they cannot negotiate or withdraw from a treaty. They can only pass a motion asking the executive to do so. This is not unconstitutional. It is up to the executive to take the process forward, or refuse to do so. The new constitution demarcates functions but proposes cooperative engagement between the three arms of government and levels of government: national and county. It cannot be unconstitutional for one arm or level of government – while keeping to its functions – to remind or request another to perform a constitutional function.
While noting that repealing the International Crimes Act does not amount to withdrawing from the ICC, the Rome Statute is clear that any State Party can withdraw (art 127). As an international lawyer, I don’t know of any treaty (including the UN Charter) that would bar a party from withdrawing. I explore conditions of withdrawal in another post.
In conclusion, I must emphasise that there is no need to amend the Constitution because the Rome Statute – just like other treaties ratified by Kenya – does not form part of the Constitution. The argument that the Rome Statute and other treaties form part of the constitution is unsupported by both comparative experience and a plain reading of art 2(6) or any other provision in the Constitution. As argued, to suggest otherwise produces a result that we do not want to live with: making it near impossible for the executive to speedily, effectively engage Kenya internationally through negotiated agreements.
Beyond legal arguments, and while noting that repealing the International Crimes Act neither withdraws Kenya from the ICC nor stops current ICC process, what can be asked of parliament is: what alternatives are we offering for real justice for victims?
I explore the idea of options in another post.
