Abstract:
n a major leap, the 2010 Constitution of Kenya recognises international law
as part of the domestic legal order. This provides courts with the opportunity
to seek inspiration from the non-municipal legal framework when resolving
disputes. However, the manner in which the Constitution incorporates
international law is ambiguous and confusing. It fails to create a rank
that can be used to resolve conflicts between local legislation and a rule of
international law. This lack of affirmation of the place of international law
in the normative rank has spawned judicial interpretation that has accorded
international law the same status as statute law. This not only diminishes
the weight that courts should place on international law, but also provides
courts with a certain amount of discretion whenever a conflict with an Act of
Parliament arises. In addition to treaties ratified by Kenya, the Constitution
also refers to ‘general rules of international law’ as being part of the law of
Kenya. This phrase is problematic because, first, it is one not generally used
to refer to sources of legal norms in international law. Secondly, it makes it
difficult for courts to ascertain where customary international law falls within
the scheme of sources of legal norms. There has been a general tendency to
equate general rules of international law with customary international law
in a manner that is strenuous and confusing. Because courts may not be
best placed to devise an interpretation that affirms the content and nature
of international law in the legal system, a constitutional amendment has
become an imperative if the uncertainty is to be removed.