The Treaty Making and Ratification (Amendment) Bill, 2018 (the Bill) has been introduced in the Senate, and the Bill seeks to amend the Treaty Making and Ratification Act, No. 45 of 2012 (the principal Act), in order to set out the role of the Senate in the treaty making and ratification process. The rationale of the Bill is that the Constitution of Kenya at article 2(6) provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution and pursuant to article 94(1) of the Constitution, the legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament. It is also noted that article 94(5) of the Constitution provides that no person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by this Constitution or by legislation."
According to the Bills presenters, Parliament consists of both the National Assembly and the Senate and consequently, the function of considering and approving the ratification of treaties is a function that resides in both Houses of Parliament in exercise of their shared legislative authority under [a]rticle 94 of the Constitution.
While the rationale for the making of the Bill appears rather woolly in the sense that article 94 as read with article 2 contemplates that other entities apart from Parliament may, if allowed by the Constitution, actually have law-making authority, we think the spirit in which the Bill is made is in the right place. For too long treaties have been ratified without the input of the Kenyan people and any provision that enhances public participation is very welcome.
The Bill will achieve its objectives by repealing the current section 8 of the principal Act and inserting a new section 8 in the principal Act in which the role of the Senate will become paramount, addition of a new section 8A to the principal Act in which the details of the inclusion of the Senate in the approval process will be included, an amendment of section 9 of the principal Act by which amendment, Parliament and not the National Assembly will be required to approve the treaties and an amendment of section 15 of the principal Act in which the Cabinet Secretary shall cause to be laid before Parliament and not the National Assembly (as is currently the case), a report of the record of all treaties binding Kenya so as to facilitate public participation.
While the amendment to section 8 of the principal Act, the insertion of the new section 8A to the principal Act and the amendment to section 9 of the principal Act is very welcome as this recognizes the role of the Senate, it is difficult to understand why section 15 should be amended. Our reading of this section is that it is merely informative requiring the Cabinet Secretary in charge of Foreign Affairs to lay before the National Assembly, at least once every financial year, a report containing records of all treaties which Kenya has ratified and which may in any way bind Kenya to specific actions. The National Assembly is not required to make any motions on the same but is merely informed by the same.
Subject to what we have stated regarding section 15 of the principal Act, our reading of the Bill is that it is acceptable. It may be argued that it introduces some form of gridlock or that the Senate's major role is to participate "in the law-making function of Parliament by considering, debating and approving Bills concerning counties" and that ratification of Bills do not concern counties. However, to both concerns, we think that as long as article 10 of the Constitution requires public participation, then the entities referred to as counties have a right to participate in the ratification process through the Senate. Besides, what concerns counties may be very wide, and may include the treaties that we ratify as a nation.