A Jigsaw Puzzle or a Map? The Role of Treaties under Kenya's Constitution

Author: 
Nyarango, Archibold Ombongi
Place: 
Cambridge
Publisher: 
Cambridge University Press
Date published: 
2018
Journal Title: 
Journal of African Law
Source: 
Journal of African Law, Vol. 62, No. 1, January 2018, pp. 25-50
Abstract: 

Kenya's 2010 Constitution marks the first time that treaty law has been constitutionally declared part of Kenya's domestic law. However, the laconic drafting of the relevant provision leaves unanswered questions about the role of treaties. This article seeks to answer some of those questions, addresses conflicts between treaties and other laws, and concludes that treaties can be directly enforceable in domestic law unless they are expressly non-self-executing. Furthermore, domestic courts must apply treaties in accordance with the constitution, although the article also addresses the problems that this causes with article 103 of the UN Charter and the East African Community Treaty. Treaties that are applied directly domestically should be considered at a par with statutes enacted by the national Parliament and prevail over county laws. Human rights treaties should carry greater weight than conflicting statutes. Where a treaty is implemented into domestic legislation, the "parent" treaty should prevail where there is a conflict.

Language: 
Region focus: 
Country focus: 
Subject profile : 

CITATION: Nyarango, Archibold Ombongi. A Jigsaw Puzzle or a Map? The Role of Treaties under Kenya's Constitution . Cambridge : Cambridge University Press , 2018. Journal of African Law, Vol. 62, No. 1, January 2018, pp. 25-50 - Available at: http://library.africa-union.org/jigsaw-puzzle-or-map-role-treaties-under-kenyas-constitution

Printer-friendly version Send by email