Nairobi, November 23, 2015

By Ben Mwendwa, Communications Unit

legalNakuruThere is inordinate need for Kenya to have a clear system in place to facilitate informed and effective harmonization and approximation of laws in line with treaties and other international obligations she has committed to. There currently seems to exist a gap in terms of amending Kenya’s laws in line with the treaties she has ratified. As the institution charged with EAC affairs coordination, the State Department of East African Affairs, which has signed many protocols and treaties bare the mandate of ensuring the laws are tantamount to the full implementation of the same without creating conflicts. “As such, we have developed a policy to provide a framework for the harmonization and amendment of national laws to be consistent with treaties ratified before 2010 while taking into consideration the best interest of Kenya” said Ms. Rose Nyakwana, Principal Counsel and head of EAC Affairs Legal Unit while opening a three day Regional Harmonization and Amendment of national laws workshop in a Nakuru Hotel.

The aforementioned policy majorly seek to identify objectives and priorities of Kenya’s Harmonization and Approximation policy as well as strategies of protecting Kenya’s interests in the regional integration process by establishing and emphasizing the strong belief that Kenya’s future is inextricably linked to its exports and vibrant trade including its neighbors within and beyond the Community. It’s against this backdrop that the policy has been developed to achieve several national objectives, inter alia to: Protect Kenya’s sovereignty and territorial integrity; Promote regional integration; and Promote informed partnerships and engagements with her neighbors.

The Constitution of Kenya Article 2(6) clearly indicates that all treaties ratified by Kenya shall form part of the national laws under this Constitution and Article 2(5) stipulates that all general principles of international law shall form part of the law of Kenya. Article 2(6) of the constitution should have a clear interpretation to guide on treaties that provide for how they ought to be implemented especially by amendment of national laws.

Ms Nyakwana accentuated that the need to develop this policy was engineered by the requirements of the Treaty for the establishment of East African Community article 126 2(b) which stipulates that “Partner States through their national institutions take necessary steps to harmonise all their national laws appertaining to the community” adding thatKenya does not have set out procedures and specific national institution designated to undertake harmonization of laws which sometimes pose a challenge to the institutions handling integration issues.

The three day workshop which drew participation from at least 16 public and private sector institutions deliberated through the need for a proper interpretation of article 2(6) and (5) of the constitution 2010 in the implementation of Treaties by amending laws.

Any treaty and/or protocol signed by a state must serve the interest of her citizenly hence in an effort to safeguard Kenya’s interest, the policy in question provides for standing committee/board to be put in place under the Ministry responsible for integration to approve all requested amendments of national laws to facilitate implementation of Treaties. This committee/board will be representative of all relevant institutions including but not limited to Attorney Generals’ office, Parliament, Ministry of foreign Affairs, Kenya Law Reform Commission, Ministry of East African Affairs, Commerce and Tourism and Ministry of Finance which were ably represented in the workshop.

The Republic of Kenya in the current medium term plan looks up to regional integration to improve trade especially exports, hence considers regional integration to provide market for her products and thereafter boost her economy. The implementation of the treaties the country has committed to is key, and should be fast tracked keenly. One of the treaties that provides for its implementation through amendment of national laws is the East African Community Common Market Protocol. Such amendments to national laws require that the relevant institutions are consulted and the said amendments subjected to public participation. The decision by the relevant institutions to allow or reject amendments should be guided.

The above scenario calls for a legislative framework for the harmonization, approximation and amendment of national laws so as to facilitate the implementation of some treaties as well as a committee or board that sits to consider such proposals for amendment of national laws. This committee should comprise experts from relevant institutions.

The developing policy sets a precedence for the above institutions to have an operational framework as well as modalities of engaging the public in the spirit of public (stakeholder) participation; a key requirement particularly in the spirit of a people-centered and market driven EAC integration process.

For the clear timelines and target realization, the participants suggested a Monitoring and Evaluation system as an integral part of the Kenya Harmonization and approximation of national Laws Policy. Monitoring and evaluation of the said Policy would establish whether its intended purpose was achieved, challenges facing its implementation, what corrective actions may be needed to ensure delivery of results and whether it is making any positive contribution to regional integration and the general sustainable development of Kenya.

The workshops specifically addressed the policy intended to:

v  Create an effective framework for the harmonization and approximation of laws in Kenya;

v  Task relevant institutions to undertake harmonization and amendment on national laws;

v  Foster further regional integration through a policy framework.

v  Enhance stakeholder engagement and participation in the process of harmonization and approximation of laws;

v  Establish a committee/board to consider proposed amendments to the national laws;

v  Engage Office of the Attorney General to designate a unit within the drafting department to undertake approved amendments of national laws to facilitate implementation of treaties.

During the closure of the workshop, EAC Social Affairs Deputy Director Kennedy Nyambati said the State Department of East African Affairs facilitates coordination but other stakeholders initiate, negotiate and implement these policies hence moving EAC integration agenda. He said that all stakeholders were key in ensuring the integration journey is hastened. On the same breathe, The Trade Mark East Africa Projects Officer Mr. Joshua Mutunga challenged the participants to ensure that the policy was implemented to the letter.

He observed that many policy papers have in the past been developed which never saw the light of the day but expressed optimism that this trend would hence forth change. He particularly emphasized on keenness on timelines and pledged financial support for similar projects.