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The Republic of Kenya



Kenya is a state party to a number of supra-national courts. The country became a member state of the ICC in 2005 and had relatively amicable relations with the Court until the Prosecutor decided to open an investigation against and ultimately indict six Kenyan high state officials. Afterwards the relationship between the Kenyan Government and the ICC deteriorated, with Kenya making known its intention to withdraw from the Court through a parliamentary vote calling on the government to withdraw. Although no action has been taken to withdraw from the ICC thus far, President Kenyatta has expressed his discontent of the Court, claiming it has become “tool of global power politics.” Kenya is also a State Party to the East African Community, and hence the East African Court of Justice (EACJ). Kenya is also a party to the Protocol establishing the African Court on Human and Peoples’ Rights.  To date, only one case has been brought against Kenya before the Court.  A decision was rendered in 2018. The Government promptly established a task force to implement the decision, showing the will to comply with the Court.


Treaty ratification Process

The national executive is the branch of government responsible “for initiating the treaty making process, negotiating and ratifying treaties.” Under the Treaty Making and Ratification Act, this responsibility may be delegated to the relevant state department with substantive responsibility for the subject matter of the treaty. Where the Government intends to ratify a treaty, the Cabinet Secretary of the relevant state department, in consultation with the Attorney-General, submits to the Cabinet the treaty, together with a memorandum outlining, inter alia, policy and legal considerations, financial implications and the views of civil society about ratification of the treaty. After making all relevant considerations, the Cabinet may approve the ratification of a treaty, in which case the treaty together with the memorandum will be submitted to the National Assembly (one of the two houses of the legislative branch of government) for approval. Once the treaty and memorandum reach the National Assembly (NA), the relevant parliamentary committee shall, in a manner that ensures public participation, consider the treaty. The NA may approve the ratification of a treaty with or without reservations to specific provisions of the treaty. Once a treaty is ratified, the Cabinet Secretary prepares the instrument of ratification. Kenya is a monist state, and duly ratified treaties therefore form part of the law of Kenya without the need for domestication. (Constitution of Kenya of 2010, Article 2(6))


State of legislation on International and transnational crimes

In 2008, Kenya enacted implementing legislation for the Rome Statute – the International Crimes Act (ICA). The ICA imported the definitions of genocide, crimes against humanity, and war crimes from the Rome Statute, in addition to setting out the framework for cooperation with the International Criminal Court (ICC). Under the Constitution of Kenya, as amended in 2016, however, both the President and Deputy President are accorded immunity from prosecution for the duration of their term in office. This has clear contradictions with Article 27 of the Rome Statute of the ICC, while being, at the same time, compatible with Art 46 A bis the Malabo Protocol.


An attempt was made to establish a Special Tribunal for Kenya to prosecute crimes committed subsequent to the 2007 elections, but that required a constitutional amendment because international crimes, were not recognized under Kenyan law at that time. But Parliament rejected a proposed amendment to the Constitution which would have enabled the definition and punishment of such crimes. In January 2015, the Kenyan Judiciary confirmed that it will establish an International Crimes Division (ICD) within the High Court. The Division is intended to have jurisdiction over international crimes and transnational crimes, in a manner similar to what is adopted under the Malabo Protocol, such as piracy, terrorism, cybercrime, human trafficking, and money laundering, and any other international crimes as may be proscribed under any international instrument to which Kenya is a State Party. As of yet, no such division has been created within the High Court.


Human Rights treaty signing and ratification trends

Kenya has either ratified or acceded to most of the human rights and crime related treaties at both the international and continental level.[1] But it seems obvious that it ratifies UN treaties more promptly after signing them than it does treaties adopted under the auspices of the AU. It took Kenya 7 months on average to ratify UN agreements after signing them, while the average time is about 55 months for AU treaties.[2]


AU Judicial bodies membership

Treaty Signature Ratification
Protocol to the African Charter on Human And Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights Yes Yes
Protocol of the Court of Justice of the African Union Yes No
  Protocol on The Statute of the African Court of Justice and Human Rights (Merger Protocol) Yes No
Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights Yes No


[1] See Annex – treaty signing and ratification trends calculation chart: Kenya.

[2] The calculation only includes treaties which are signed and subsequently ratified and hence does not consist treaties which have been acceded to by Kenya. Annex – treaty signing and ratification trends calculation chart: Kenya.