FACTORES ÉTICOS Y PROFESIONALES EN LA PRACTICA CON GRUPOS

The process of incorporating International Law into national laws will require development of national laws, the international and domestic systems being two different legal systems and therefore not allowing for an automatic or seamless translation of regulations. An interesting feature of the 2010 Constitution of Kenya is its provision for a monist state as opposed to the dualist state that existed under the old constitution.21 Under monism, there is no need for the

17

Article 19(3)(b) of the 2010 Constitution

18 _{Gardbaum, op cit note 14 at 755} 19 _{Ibid at 749-68}

20

Ibid at 754

21 _{See Chapter 1 of the 2010 Constitution which states that: (5) The general rules of international law shall form part}

of the law of Kenya and (6) any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. See also The International Commission of Jurists (ICJ Kenya) et al ‘State of Torture and Related

explicit translation of international norms into national law.22 This makes all the international treaties that Kenya has ratified applicable as part of its national law without the need for translation or adoption as was the case before. The monist doctrine in International Law applies two approaches; one that holds International Law to be supreme in the case of conflict with domestic law, and one that defers to domestic jurisdiction to resolve any inconsistencies.23

For all states, including monist states like Kenya for whom International Law forms part of domestic law without any additional special requirements, International Law does not usually dictate how they should fulfill their obligations.24 This means that no matter what is decided at the international level, the state has to come up with norms and procedures to apply in enforcing the obligations signed on to. The Treaty Making and Ratification Act, Act 45 of 2012, (the Act) was enacted to give effect to Article 2(6) of the Constitution25 and to provide the procedure for making and ratification of treaties. The Act recognises that International Law operates on a separate legal system from domestic law (in the same way that a dualist approach to application of International Law does), and thus makes provision for the domestication of the treaty. In view of the requirements under the Act, it is the suggestion of some that legislation by parliament be enacted and applied to harmonise the two systems.26

Adoption of International Law requires thought and will be better assimilated and applied to the extent that there is clarity for its application in the domestic context, taking the national circumstances and procedures into consideration. In deciding whether to ratify a treaty or not and before it is approved for ratification, the Cabinet will consider a number of issues required under the Act.27 Upon deliberation, it may be decided that laws are required to be enacted or amended prior to

Human Rights Violations in Kenya: Alternative Report to the Human Rights Committee to Inform its Review of Kenya’s Third Periodic Report at Its 105th _{Session (9 - 27 July 2012) on the Implementation of the Provisions of the}

International Covenant on Civil and Political Rights in Relation to Torture’ (June 2012) at 8.

22 _{Malcolm D Evans (ed) International Law 3 ed (2010) 417.} 23 _{Antonio Cassese International Law (2001) 213-25.}

24 _{Rein A Mullerson ‘Human Rights and the Individual as Subject of International Law: A Soviet View’ (1990)}

European Journal of International Law 33, 40. For states that are dualist in nature, it is impossible to apply

international law without the use of national laws; any international treaties ratified must be translated into national law before they can be applicable at the domestic level. For such states, failure to adopt internationally binding rules does not present a tragic obstacle in the effort to make corporations accountable for human rights.

25

Article 2(6) states ‘Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution’.

26 _{Tom Kabau & Chege Njoroge, ‘The Application of International Law in Kenya Under the 2010 Constitution:}

Critical Issues in the Harmonization of the Legal System’ (2011) 44(3) Comparative and International Law Journal

of Southern Africa, 298.

27 _{Section 7. Some of the issues to be presented in the Cabinet Memorandum include: ‘… (e) requirements for}

ratification in order to make the treaty to be ratified clearer. Financial implications of implementing the treaty may demand its postponement to such a time as the necessary resources for implementing it will be available. Article 2(4) of the Constitution provides that any law that is inconsistent with the Constitution is invalid to the extent of the inconsistency, meaning that ratified treaties that are not consistent with the provisions of the Constitution will not be applicable. The monist doctrine contemplated in the Constitution is therefore not as direct as may be imagined but, rather, consists of a harmonisation of international and domestic law where they interact at different levels.28

Once approved by Cabinet, the treaty and accompanying memorandum will be submitted to parliament for ratification.29 A parliamentary committee will be set up to review the treaty, and is expected to ensure public participation in a review of the treaty before considering it for approval.30 The Constitution requires Parliament to conduct its business in an open manner, and facilitate public participation and involvement in the legislative and other business of Parliament and its committees.31 Further, the Constitution includes public participation as part of the national values and principles of governance.32To guarantee useful public participation in the process of considering the treaty, a number of principles can be applied including preemptive move by government and civil society to invite public participation; inclusiveness that enables all interested persons and relevant groups, including the vulnerable and marginalised, to fully participate in the deliberations; transparency that enables the process to be open to input at all stages; and respect for public input ensuring it is given due consideration.33

In a study carried out to evaluate local participation under the new constitutional provisions,34 a number of challenges to public participation were identified. Citizens, especially the poor found it difficult to participate, having little personal incentive.35 In some instances, the issues under consideration were too technical for effective following and intervention by citizens, thus

the public on the ratification of the treaty; (n) whether the treaty sought to be ratified permits reservations and any recommendations on reservations and declarations; … (p) whether expenditure of public funds will be incurred in implementing the treaty and an estimate, where possible, of the expenditure.’

28

Kabau & Njoroge op cit note 26, 299.

29 _{Article 8.} 30 _{Article 8(3).} 31 _{Article 118.} 32

Article 10.

33 _{Organisation of American States ‘Inter-American Strategy for the Promotion of Public Participation in Decision-}

Making for Sustainable Development’ (2001) 4-5.

34

The World Bank ‘Six Case Studies of Local Participation in Kenya: Lessons from Local Authority Service Delivery Action Plan (LASDAP), the Constituency Development Fund (CDF) and Water Action Groups (WAGs)’ (October 2013).

necessitating prior training by government and civil society.36 When it comes to participation in the assessment of international treaties, there will be need to communicate the content of the treaties and explain its implications for there to be useful deliberations about them. Additionally, effective mobilisation of the citizens for participation requires time and resources to compensate those involved in the technical and administrative work of organising the meetings. Also, for the interaction with citizens to be useful, there must be an effective way of communicating the feedback and incorporating it in the process in question.37 The ultimate implications of the requirement of public participation is that even after the drafting of a treaty on business and human rights and its coming into force, there would still be a further road to travel before the treaty is applicable locally.