The Place of International Law in the Hierarchy of Valid Norms Under the 2010 Kenyan Constitution

Abstract

The ratification and promulgation of the 2010 Kenyan Constitution brought with it a hope for the realization of the hopes and aspirations of the Kenyan people. It marked a rebirth of a new nation and marked some considerable changes in the Kenyan legal order. One of the changes introduced by the 2010 Constitution was the introduction, recognition and inclusion of International Law as a source of law in the form and Spirit of Article 2(5) and 2(6) of the Constitution. The recognition of International Law as a source of law in Kenya by the Constitution brought together with it a barricade of interpretative and application questions that generally deal with the place of international law in the hierarchy of valid norms in the Kenyan legal order. This paper attempts to provide an answer to the question of the place of international law in the hierarchy of the valid norms in the Kenyan legal system. The paper seeks to achieve this by analyzing the various theories that seek to explain the relationship between international law and domestic law in the domestic front. In conclusion, it is realized that the international law regime is basically one of the best regimes to guarantee the realization of fundamental rights and freedoms in the domestic sphere and thus, even though jurisprudence on this area is still developing, the Kenyan courts ought to adopt an approach and a system of interpretation of Article 2(5) and 2(6) of the Constitution, that most guarantees the realization and enjoyment of human rights by the Kenyan citizens in the domestic front.