From Dualism to Monism: The Structure of Revolution in Kenya’s Constitutional Treaty Practice

  • Makumi Mwagiru University of Nairobi

Abstract

The constitutional referendum in Kenya on 4 August 2010 in which the citizens overwhelmingly approved the new constitution was a hallmark event in more than one aspect. It paved the way for the promulgation of Kenya’s second constitution. The new constitution has reconfigured Kenya’s institutions across board. It also created a scientific revolution in Kenya’s treaty practice. For the first time, Kenya’s treaty practice is enshrined constitutionally and marks a shift from the old dualist practice to monism. This article examines the character and structure of that scientific constitutional revolution.

            In the face of all the fundamental changes that the new constitution has made in Kenya’s political life, it would be easy to overlook those in Kenya’s treaty practice, or even underestimate their importance. It would also be easy to overlook their significance for Kenya’s domestic legal relations, and its external diplomatic and legal relations.

            Treaties – bilateral and multilateral – are one of the clearest manifestations of the complex interdependence of international relations. States enter into agreements either bilaterally or multilaterally, on a wide range of issues touching on their mutual relations. So pervasive is the system of agreements and treaties in the system that if the world map was marked to show the treaties and agreements existing in the international system, the map would disappear, as would the traditional territorial borders reflected on maps. In the face of this reality, it is clear that without the system of treaties and agreements pervading international relations, the world would be more impoverished. Treaties are an increasingly important feature of international and regional relations. They are an important aspect of diplomacy, and a notable feature of regional diplomacy.

Key words: Treaties, Constitution. Monism, dualism

Author Biography

Makumi Mwagiru, University of Nairobi

Prof. Makumi Mwagiru, PhD, is currently the Director of the Institute of Diplomacy and International Studies, University of Nairobi. He also teaches at the National Defence College of Kenya in Nairobi. He teaches and researches on issues of diplomacy, international law, international conflict management and regional security. His latest books are Diplomacy: Concept, Actors, Organs, Process and Rules (co-authored with Dietrich Kappeler and Josephine Odera (2010); Documents of Diplomacy: Analysis, Functions and Drafting (2009), and The Water's Edge: Mediation of Violent Electoral Conflict in Kenya (2008). He has also edited Human Security: Setting the Agenda for the Horn of Africa
(2008).

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eISSN: 1998-1279