THE USE of INTERNATIONAL HUMAN RIGHTS LAW by SUPERIOR NATIONAL COURTS in KENYA and SOUTH AFRICA By

THE USE OF INTERNATIONAL HUMAN RIGHTS LAW BY SUPERIOR NATIONAL COURTS IN KENYA AND SOUTH AFRICA by Dennis Mutua Ndambo Submitted in fulfilment of the requirements for the degree of DOCTOR LEGUM (LL.D) in the Faculty of Law, University of Pretoria November 2020 Supervisor: Prof. Magnus Killander ii © University of Pretoria DECLARATION I declare that this thesis, which I hereby submit for the degree of DOCTOR LEGUM (LL.D), at the University of Pretoria, is my own work and has not previously been submitted by me for a degree at this or any other tertiary institution. Dennis Mutua Ndambo November 2020 iii © University of Pretoria ACKNOWLEDGEMENTS My supervisors, Prof. Magnus Killander and Prof. Erika de Wet (up to 2019), deserve special recognition for their careful guidance and attention to detail. In particular, I thank them for their endless patience with me and for facilitating my research activities. I thank my family, friends and colleagues in Kenya and South Africa for encouraging and supporting me in various ways. My heartfelt thanks go to the staff and students at the Institute for International and Comparative Law in Africa, and the Centre for Human Rights. Above all, I thank God for everything. iii © University of Pretoria DEDICATION For Agnes, Isaac, Josef, Emmanuel and David. iv © University of Pretoria SUMMARY The practice of domestic courts continues to present challenges for understanding the relationship between international law and municipal law. Whereas constitutions increasingly contain more or less similar provisions on international law, the subsequent use of international law by domestic courts varies from traditional doctrinal approaches. This divergence by domestic courts is attributable to the fact that domestic and international courts/tribunals are engaged in exchanging ideas and formulating similar decisions on diverse substantive law issues out of a sense of common judicial identity and enterprise. Due to the multitude of actors and the complexity of the relationships involved, the traditional monism-dualism doctrines do not accurately reflect current practice. Rather, this process is better termed as transnational judicial dialogue. Through transnational judicial dialogue, domestic courts collectively engage in the co-constitutive process of creating and shaping international legal norms and, in turn, ensuring that those norms shape and inform domestic norms. This study analyzes decisions of the superior courts of Kenya and South Africa in order understand the manner in which the courts receive, interpret and re-formulate international legal norms. It is clear that the domestic courts are not mere conduits for the reception of international legal norms into the domestic legal order but that they act as mediators between the international and domestic legal norms. This study also attempts to demonstrate that transnational judicial dialogue may provide normative guidance for the relationship between international law and national law in the domestic legal order. Keywords: International law, human rights law, treaties, custom, general principles of law, judicial decisions, resolutions, transnational judicial dialogue, dualism, monism, norms, international courts, domestic courts, Kenya, South Africa v © University of Pretoria ABBREVIATIONS AND ACRONYMS ACERWC African Committee of Experts on the Rights and Welfare of the Child ACmHPR African Commission on Human and Peoples’ Rights ACtHPR African Court on Human and Peoples’ Rights ACtJHR African Court of Justice and Human Rights ANC African National Congress AU African Union CEDAW Committee on the Elimination of Discrimination Against Women CESCR Committee on Economic, Social and Cultural Rights CJAU Court of Justice of the African Union CmRC Committee on the Rights of the Child CODESA Convention for a Democratic South Africa CoE Committee of Experts DSB Dispute Settlement Body EAC East African Community EACJ East African Court of Justice EACSO East African Common Services Organisation ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights GATT General Agreement on Tariffs and Trade HRC Human Rights Committee IACtHR Inter-American Court of Human Rights IBEAC Imperial British East Africa Company ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICSID International Centre for Settlement of Investment Disputes ICTR International Criminal Tribunal for Rwanda vi © University of Pretoria ICTY International Criminal Tribunal for the former Yugoslavia IGAD Intergovernmental Authority on Development ILC International Law Commission ILO International Labour Organisation ITLOS International Tribunal for the Law of the Sea JCPC Judicial Committee of the Privy Council MPNP Multi Party Negotiating Process NGO Non-Governmental Organisation OAU Organisation of African Unity PCA Permament Court of Arbitration PCIJ Permament Court of International Justice SADC Southern African Development Community SAPS South African Police Service UDHR Universal Declaration on Human Rights UN United Nations UNCLOS United Nations Convention on the Law of the Sea UNGA United Nations General Assembly UNSC United Nations Security Council WTO World Trade Organisation vii © University of Pretoria TABLE OF CONTENTS THE USE OF INTERNATIONAL HUMAN RIGHTS LAW BY SUPERIOR NATIONAL COURTS: A COMPARATIVE STUDY OF KENYA AND SOUTH AFRICA ii DECLARATION iii ACKNOWLEDGEMENTS iii DEDICATION iv SUMMARY v ABBREVIATIONS AND ACRONYMS vi TABLE OF CONTENTS viii Chapter 1 1 Introduction 1 1. Background 1 2. Research problem and research questions 3 3. Theoretical approach and literature review 5 i. Historical overview of the relationship between international law and municipal law 5 ii. Transnational judicial dialogue as a doctrine 8 4. Methodology 9 5. Conceptual framework 11 6. Chapter breakdown 13 Chapter 2 15 International law during the development of Kenya’s legal system 15 1. Introduction 15 2. Kenya’s legal system in the pre-colonial period 15 3. The use of international law in the pre-colonial period 17 4. Kenya’s legal system during the colonial period 21 5. The use of international law in the colonial period 23 6. Kenya’s legal system in the post-independence period 33 i. Treaties 38 ii. Customary international law 41 7. The use of international law after independence 42 8. Conclusion 53 viii © University of Pretoria Chapter 3 54 The use of international law in Kenya under the 2010 Constitution 54 1. Introduction 54 2. Prelude to the 2010 Constitution 54 3. Constitutional and legislative provisions on international law 55 4. Treaties 60 i. Domestication versus non-domestication, and the direct applicability of treaties 64 ii. Hierarchy between municipal law and treaties 68 5. Customary international law 70 i. Reference to customary international law 71 ii. Direct applicability of customary international law and hierarchy between municipal law and customary international law 78 6. General principles of law 80 i. Reference to general principles of law 81 ii. Direct applicability of general principles of law and hierarchy between municipal law and general principles of law 83 7. Judicial decisions 84 8. Declarations, resolutions, and non-binding instruments and decisions 92 9. Transnational judicial dialogue in Kenya 97 10. Conclusion 99 Chapter 4 100 International law during the development of South Africa’s legal system 100 1. Introduction 100 2. South Africa’s legal system in the pre-colonial period 100 3. South Africa’s legal system under Dutch colonisation 102 4. South Africa’s legal system under British colonisation 106 i. Cape 106 ii. Natal 111 iii. South African Republic 115 iv. Orange Free State 124 5. Application of international law before the establishment of the Union 128 6. Application of international law during the Union period 132 7. The use of international law after establishment of the republic 139 8. Conclusion 146 Chapter 5 148 Transnational judicial dialogue in South Africa’s legal system 148 1. Introduction 148 ix © University of Pretoria 2. The place of international law during the struggle for a democratic constitution 148 3. General overview of constitutional provisions on international law 151 4. Treaties 154 i. Definition, ratification and withdrawal 154 ii. Domestication 156 iii. Hierarchy between treaties and domestic law 157 iv. Direct applicability 158 v. Role of treaties 159 5. Customary international law 163 i. Definition 164 ii. Hierarchy between custom and municipal law 165 iii. Identifying custom 166 iv. Role of customary international law 169 6. General principles of law 172 7. Judicial decisions 173 8. Declarations, resolutions, and non-binding instruments and decisions 179 9. Transnational judicial dialogue in South Africa 183 i. The right to be free from cruel, inhuman or degrading treatment or punishment 184 ii. The rights to equality and dignity 186 iii. Socio-economic rights 189 10. Conclusion 193 Chapter 6 195 Concluding Observations 195 1. Introduction 195 2. Constitutional development 195 i. Kenya 196 ii. South Africa 198 3. Judicial interaction with international law 201 i. Kenya 201 ii. South Africa 204 4. The relevance of monism versus dualism 206 5. Transnational judicial dialogue 207 i. Kenya 208 ii. South Africa 210 6. Normativity and transnational judicial dialogue 213 7. The future of transnational judicial dialogue 220 BIBLIOGRAPHY

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