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"id": 4999,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/4999/?format=api",
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"type": "speech",
"speaker_name": "Mrs. Odhiambo-Mabona",
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"speaker": {
"id": 376,
"legal_name": "Millie Grace Akoth Odhiambo Mabona",
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"content": "Mr. Temporary Deputy Speaker, Sir, as I had indicated, this Bill seeks to give effect specifically to Article 2(6) of the Constitution and Article of 94 of the Constitution. This is because when we were campaigning for the Constitution and when the Constitution was taken for referendum, those who were opposed to the Constitution argued that the provisions of Article 2(6) enabled persons other than Parliament to pass laws through the back door. I had also indicated that in a way, they may also affect Article 2(5) of the Constitution although it does not strictly have to apply because the process of law crystallizing as general rules of international law are different. I noticed during that debate that people were confusing those concepts. For a law to crystallize as a general rule of international rule, then it must have been a practice that has been adopted by several states over a number of years and there would be near unanimity. Therefore, the issue of ratification does not apply. If a country does not agree with a general rule of international law, they can refuse by being a persistent objector. For instance, Kenya has been seen as a persistent objector to the issue of abortion. Therefore, even if an international rule were to develop around the issue of abortion, then unless Kenya specifically legislates and indicates that it allows the right to abortion, then Kenya would be seen as a persistent objector. Mr. Temporary Deputy Speaker, Sir, I want to go back to the issues that were canvassed during the constitutional referendum. The arguments by the opponents to the Constitution in relation to Article 2(6) were to the effect that the application of international law in Kenya without the necessary legislative oversight by Parliament amounted effectively to legislation by the Executive and yet by the new Constitution, we had clearly provided for separation of powers. This, according to the opponents as was ably articulated by my old time college mate, Peter Wayaki, was that it would amount to rule by decree in a situation where the Executive is not elected except for the President and the Deputy President. Under the new Constitution, most of the Executive will be appointed and not elected. The gist of the argument is that this would limit Kenya’s sovereignty as we would be ceding our legislative powers to other countries under international law. I would want to note that this is an old argument which in law we have classified as the monist and dualist approach. The Monist Theory imagines a unitary world legal system in which national and international law have comparable equivalent or identical subjects, issues and substantive contents. Supremacy is placed on international law above national law under Monist Theory. These theorists basically argue that the international law is more superior to national law and, therefore, once an international law is passed, then it does not matter what the national law provides. In that instance, even if Kenya were to pass a Constitution, according to the Monist Theory, if the Constitution of Kenya is not in conformity with international law, then international law would take precedence over the Kenyan Constitution. On the other hand, we have the Dualists approach which distinguishes between international law and national law and only makes states the subjects of international law. The proponents of this approach are persons who put a lot of weight to the concept of sovereignty of states. They argue that because countries are sovereign, they should be allowed and let alone to legislate on issues of sovereignty of their own countries. Because of that, they give supremacy to national law over international law. It is one of the arguments we have seen that has been put forward even over the ICC Tribunal and other international tribunals. I want to say that Kenya is in a very unique situation because we cannot call ourselves strictly monists or dualists. The reason is, if you read Article 2(6) even though it may appear like that it has self-executing provisions, if you look at the provisions provided in the Constitution, they are already in conformity with international law. Therefore, whether or not it is self executing is really not relevant. Mr. Temporary Deputy Speaker, Sir, I want to compare Article 2(6) of the Kenyan Constitution with the Dutch Constitution of 1983 and especially Article 93 that provides the provisions of treaties and decisions of international organizations shall have binding effect in that country. I want to say that if you notice the significant difference between that Dutch law and the Kenyan law is that in Kenya, we have provided that treaties that are ratified by Kenya. In the Dutch law, the provision of ratifying treaties is not indicated which, therefore, makes the Dutch situation self-executing. In Kenya, it is not self-executing and it gives room for us to provide for a law that indicates how we shall ratify treaties. In the past, the ratification of treaties has been the pure and absolute preserve of the Executive and the Legislature has not been involved in it. Those who are arguing about issues of sovereignty, I would like to say that, while I acknowledge their arguments, one of the things that we need to understand is that sovereignty as a concept is now becoming very fluid because the world is becoming a global village. With a global village, no country is going to watch any other country kill its own people, violate the rights of its own citizens and argue that it is a sovereign State. Mr. Temporary Deputy Speaker, Sir, whereas I agree, we still have a measure of sovereignty as countries, yet in matters especially of human rights violations, the world has become very vigilant. The concept of my brother’s keeper is therefore gaining a lot of currency in the international arena especially within the ambit of human rights protection. Having said that, I want to say that treaties negotiated should be done through parliamentary approval process much more in light of the fact that Kenya is becoming part of several international and regional blocs with several bilateral and multi-lateral treaties. The risk of legislating on issues that might clash with our Constitution is becoming real. Indeed, the East African Treaty has always been sighted as a case in point especially on the budgetary process. There has been argument that Kenya needs to amend its Constitution to conform with the East African Treaty. Therefore, the question is; will we be doing this with every bi-lateral treaty or international treaty that Kenya ratifies? The best approach is to provide for ratification of treaties through Parliament so that Parliament and the Executive is involved so that when they go out to ratify treaties, it will have the blessings of the Kenyan people through Parliament. Through that process, we will not be seen to be sneaking in legislation or provisions that are not attractive to Kenyans. Mr. Temporary Deputy Speaker, Sir, indeed, there have been instances in the past where we have had near misses like in the Cancuun talks. There are standards that were being set by the international community which were not favourable to Kenya."
}