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International Law and Constitutional Reform: A Case Study of the 2010 Constitution of Kenya
[Thesis]. Manchester, UK: The University of Manchester; 2018.
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Abstract
This thesis explores the function of international law in constitutional reform in post- independence Kenya. International law has played a critical role in the nation’s constitutional review process that culminated in a new constitution in 2010. It has also determined much of the content of the new document. This thesis argues that injecting international norms into the constitutional order services the emancipation of the Kenyan legal system. The application of international law and standards in the Kenyan constitutional order helps emancipate the law from the legacy that colonialism left upon the legal system. In support of this central claim, the thesis first addresses the role of international law in the design and reform of the new constitution and the new judiciary. It disputes concerns about the ‘hegemonic’ or ‘homogenising’ force of international law. Both the constitutional and judicial review process, and the assimilation of international norms into the document, were adapted in order to respond to the nuanced demands of the Kenyan state. The thesis then turns its attention to the application of these norms in the Kenyan courts. It is posited that the domestic judiciary indigenises and hybridises international norms in a way that unlocks the counter-hegemonic potential of international law.
Keyword(s)
Constitutional Law; Constitutional Reform; International Law; Kenya