Vienna Convention on the Law of Treaties
Treaties and agreements between nations in the world were codified into law by the Vienna convention and Kenya being a signatory is bound by it. We seek to look at the various protocols, agreements and treaties that Kenya has signed over the years and their impact on us as a nation but let's first understand treaties and how they come into force in Kenya.
With the promulgation of the new constitution on 27th August 2010, the governance and administration structures of the 47 year old nation changed drastically with new guidelines on how to relate with each other as citizens and with other nations of the world.
Kenya being a member of many international bodies such as United Nations (UN), African Union (AU), COMESA and East African Community (EAC); relates in areas of Trade, Commerce, diplomatic affairs and enters into many treaties and agreements which need to be enforced in Kenya.
The treaties that were signed under the old constitution and their coming into operation are different from treaties that will be signed under the new constitution, we seek to check out why this is so.
Coming into force of treaties under the old constitution
Under the repealed constitution, ratification of treaties required the government to bring a bill in Parliament that was in line with that treaty to enforce its requirements, since treaties had no recognition under the then constitution. This process is known as domestication. The other option was to implement the treaty as a government policy if it did not require any legal backing.
This process of enforcing treaties was both good and bad depending on the treaties that were coming into force. Domestication ensured that the public had an opportunity to scrutinize the law that was coming into force. This helped us to guard ourselves as a nation from commitments taken by few individuals on behalf of all of us on issues we did not agree on.
The bureaucracy of this whole process had its own disadvantages in that important treaties that where important to the citizens took long to be implemented or due to politics some of the bills could not see the light of day. This resulted to Kenya signing many treaties that would be beneficial to Kenya but not implemented such as treaties on health, human rights and education.
Coming into force of treaties under the New Constitution
Among the notable changes that were entrenched under the new constitution was the issue of rules of International Laws and Treaties. The constitution under Article 2 (5)[1] and Article 2 (6)[2] entrenches these international Instruments as part of the laws of Kenya when the country decides to ratify them.
The constitution under Article 2 spells out the various sources of law that will form the laws of Kenya to include;
general rules of international law,
Any treaty or convention ratified by Kenya.
This implies that by signing any treaty under the new constitution Kenya binds itself to incorporate the new laws or the treaties that had been previously signed. The president is required by the constitution to ensure this obligation is fulfilled.[3]
The new constitution does not specifically identify the process or persons who will be responsible for signing the treaties on behalf of the country, but by established practice the president being the Head of State is responsible for signing or any other officer delegated the responsibility.
The Vienna convention however identifies the officers of a state who can sign on behalf of governments to include head of state, head of government, foreign affairs minister or heads of diplomatic missions or accredited persons.[4]
Kenya has not yet formulated any law that governs the signing of treaties and this has been left to the above named officers to decide for close to 40 million Kenyan citizens what is good or not good for us.
Knowing that some international companies and nations may have vested interests in some laws, they may influence the few officers representing a country, and this should be a cause to worry, if the laws may not be good for us.
This is more compounded by the fact that a state cannot invoke its internal rules to refuse to meet the obligations of a treaty[5] regardless of what the laws in the country provide.
The only bill that seeks to control or outline the procedure for ratifying treaties is the 'Ratification of Treaties Bill, 2011'. Hopefully when this becomes law it will regulate the legalization of treaties and ensure we sign treaties that are beneficial to Kenyans.
[1] Laws of Kenya, Constitution of Kenya, 2010 Article 2 (5) the general rules of international law shall form part of the law of Kenya.
[2] Ibid, Article 2 (6) any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
[3] Ibid, Article 132 (5) The President shall ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries.
[4] Vienna Convention on the Law of Treaties 1969, Article 7 (1) A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:
(a) he produces appropriate full powers; or
(b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;
(b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;
(c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.
[5] Ibid, Article 27, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.