Browsing by Author "Orago, Nicholas Wasonga"
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Item The 2010 Kenyan constitution and the hierarchical place of international law in the Kenyan domestic legal system: a comparative perspective(Pretoria University Law Press (PULP), 2013) Orago, Nicholas WasongaThe prominent use of international human rights law in a state’s domestic legal system depends on the hierarchical place occupied by international law in general, and international human rights law in particular, among the sources of law in that particular legal system. Two systems of receipt of international law in the domestic legal systems have been used by different states: monism, which looks to directly incorporate ratified international law treaties in a state’s domestic legal system; and dualism, which entails the transformation of international law into the domestic legal system through the domestication of ratified international law treaties by means of the enactment of parliamentary legislation. Kenya, as a Commonwealth country, has always primarily followed a dualist approach which requires that domesticating legislation be enacted by parliament for ratified international law treaties to have application in the domestic legal system. However, with the promulgation of the new Constitution in August 2010, international law has been given a more prominent role in the domestic legal system through the inclusion in the Constitution of a provision directly incorporating ratified treaty law into the Kenyan legal system as a legitimate source of law. This article is primarily focused on analysing the hierarchical place of international law, specifically international human rights treaty law, in the Kenyan domestic legal system in the context of the new constitutional dispensation. It recommends that in order for international human rights law to have a prominent place in the governance of the country, article 2(6) of the Constitution should be interpreted progressively so as to give international human rights law norms an infra-constitutional but a supra-legal status in the domestic legal system. In this way, international human rights law will act as a bulwark against recession to totalitarian rule, as well as safeguard the democratic and fundamental rights protection gains that were won in the struggle for constitutional change.Item lnterrogating the competence of the African Court of Justice and Human Rights to review the African Union Assembly's decisions for compliance with human rights(University of Western Cape, 2010) Orago, Nicholas Wasonga; Gallinetti, JacquiGlobalisation and the transfer of powers from state constitutional systems to international organisations (lOs) have led to several deficiencies, especially with regard to checks and balances in global governance.l The need to inculcate the rule of law and constitutionalism in global governance has therefore gained currency in the 21't century.'This has been exemplified by calls for the reform of the United Nations (UN) and the extensive reforms in regional lOs, such as the European Union (EU), with emphasis on institutional balance and the tempering ofpolitical power with institutional controls.3The African continent has not been left behind in these developments. Africa has witnessed a proliferation of regional and sub-regional lOs with diverse mandates and competencies.a These bodies make decisions and adopt treaties with enormous implications for human rights and the fundamental freedoms of individuals.s Even though these lOs are well-intentioned, several questions arise about their checks and balances. First, how far are they bound to consider international human rights norms and standards in their work? Secondly, can their decisions besubjected to judicial review?6 Lastly, which body in the African human rights system has the mandate to judicially review such decisions? These are some of the questions with which this thesis will attempt to grapple, albeit with a limited focus.