An Analysis of The Monist and Dualist Theories of Internatonal Law: Illustrating Their Application Within The Kenya Legal System.

Abstract

The 2010 Constitution of Kenya, incorporates international law as part of the law of Kenya vide Article 2 (5) and 2 (6). However, the manner in which it forms part of Kenya law has not only sprawled confusion as regards its relationship with domestic law in light of the monist and dualist approaches but also threatened the supremacy clause under Article 2 (4). Above all, it has raised questions concerning the relevance of the monist and dualist theories of international law within the Kenya legal system. From the foregoing backdrop, this study aims to determine the relevance of the said theories and propose a better application of them in Kenya. The study begins by analyzing these theories and digging into their historical background, key proponents, criticism, core elements and their approach to a developing international law sphere. It goes further to illustrate the relevance of these theories in both prior and post the promulgation of the 2010 Constitution. Of importance, this research utilizes several selected case laws to illustrate how domestic courts have and continue to apply these theories when interpreting the relationship between international and national law and solving conflicts. Further, this research finds that the provisions of Article 2 (4), 2 (5) and 2 (6) introduce a hybrid application of both monist and dualist approaches which has given the courts a free hand to decide how to apply international law in solving disputes. This has led to inconsistencies in jurisprudence. It also finds that the Constitution does not provide for the place of international law in the hierarchy of laws which has questioned the supremacy of the international law over the Constitution. Drawing from the discussion, it affirms that these theories are relevant in harmonizing international law and national law. Therefore, a better application of these theories would shape a more unified approach to law. In conclusion, it recommends the courts to use the ‘most applicable law’ rule in solving disputes between the two legal systems and also constitutional amendments to provide clarity on Article 2 (5) and 2 (6).