Why Kenyans should have a robust debate about global treaties

The implementation of the devolved system of government has lately been in the spotlight, especially in light of the report that was issued by the Controller of Budget on how the 47 governors have so far handled funds in their respective counties.

The recent tussles over how the health system should be managed further portrayed the intricacies involved in implementing devolution.

But as the battle of ideas over how devolution should be realised continues, it would also be important for Kenyans, national government officials and governors to acquaint themselves with the “other Constitution” that is equally Kenyan but largely overarching over the Constitution of Kenya, 2010.

Which is this “other Constitution”? It is the principles of international law and the wide range of treaties that Kenya has ratified. These instruments were “adopted” in Article 2 (5) and (6) of the Constitution and became “laws of Kenya under this Constitution”.

This adoption was merely a detail for avoidance of doubt but is largely unnecessary since the treaties and principles of international law are self-executing.

In effect therefore, Kenyans and the two levels of government are obligated to comply with and implement the 264 articles and six schedules of the Constitution together with more than 400 treaties, charters, conventions, covenants and protocols of regional and international scope.

These treaties cover governance issues and the many functions that are now the subject of “unbundling” and contention between the counties and the national government. The treaties rightfully place Kenya among the family of nations that constitute the “global village”.

Nearer home is the Treaty for the Establishment of East African Community where Kenya is one of the “partner states”.

It provides for wide-ranging “integration and co-operation” in order to “strengthen and regulate the industrial, commercial, infrastructural, cultural, social, political and other relations of the partner states to the end that there shall be accelerated, harmonious and balanced development and sustained expansion of economic activities, the benefit of which shall be equitably shared”.

The EAC integration process follows the well known path from free trade area, to customs union, common market, monetary union and should culminate in 2015 in a political federation.

This means that as we “divide” the territory of Kenya into 47 counties, we have to simultaneously retain the country as a partner state and also open up our borders for the EAC integration to take root.

A significant detail that should be considered as the Constitution is being implemented, especially with respect to devolution, is Article 8 (4) and (5) of the EAC treaty which provides that “Community organs, institutions and laws shall take precedence over similar national ones on matters pertaining to the implementation of this treaty and …partner states (shall) undertake to make the necessary legal instruments to confer precedence of Community organs, institutions and laws over similar national ones”.

Therefore, as we develop organs, institutions and laws in line with the Constitution, we have to align them to similar ones at EAC, with the latter taking precedence. The EAC Customs Management Act is already being implemented directly by all the member states.

This should be the case with all sector laws covering matters within the purposes of the treaty such as education, energy, environment and natural resources, agriculture and food security, health, trade, transport, communication, labour, tourism and wildlife and political matters.

The EAC Power Master Plan, or Health or Agricultural and Rural Development Policy, for example, should be the foundation from which the energy, health or agricultural policy should be built on. The national government and counties would then be guided by such policy as they develop their organs, institutions or laws.

But the mother of all treaties is the Charter of the United Nations which obligates members to govern themselves and relate with one other within some specific norms and standards, for example, peace, security and justice, international cooperation and the promotion and respect for human rights and fundamental freedoms and better standards of life.

The UN Charter also houses other treaties by being their custodian and by giving the organisations established by such treaties the status of UN “specialised agency”.

A major thread of the UN Charter is “harmonisation” among her members to achieve common goals, including matters of economic and social progress and development, solutions of international economic, social, health, and related problems and respect for, and observance of, human rights and fundamental freedoms.

The UN Charter establishes the World Health Organisation to “provide leadership on global health matters”. The agency has published legally binding global health regulations.

The International Health Regulations assign obligations to members to,  among others, develop capacity and participate in international surveillance, response  and control of certain public health events and risks.

It further requires that a state party notifies the WHO of events which may constitute a public health emergency of international concern within 24 hours of their occurrence in their territory.

It is imperative, therefore, that as the national government and the counties implement the provisions of the Fourth Schedule to the Constitution, which ensures that a national public health system is in place to play the roles set out in the IHRs.

The sectors of trade and agriculture are internationally governed by more than 28 treaties, also called the rules of trade, under the auspices of the World Trade Organisation, a forum for negotiating trade.

It operates within the principles of non-discrimination, lowering barriers, predictability and transparency, discouragement of unfair practices, among others. 

These treaties and the principles of international law are the “other” Constitution which Kenyans need to acquaint themselves to.

Dr Karugu is a trainer in World Trade Organisation’s sanitary and phytosanitary measures. Email: [email protected]