Kenya’s Foreign Relations under the 2010 Constitution

It is well settled among foreign policy analysts that domestic politics does affect foreign relations. Within the domestic sphere there is the constitution that serves both as a political document as well as a legal one. So what role, if any, does it play in Kenya’s foreign relations?

There are those that are more obvious than others such as ratifications of international instruments. In the past, international instruments such as treaties and conventions needed to be domesticated in order to apply as part of our municipal law. It appears that this has changed by dint of article 2(6) of the constitution. It states that any treaty/convention that has been ratified by Kenya forms part of our law. For international lawyers, one can argue that Kenya has moved from being a dualist state into a monist one.

This also means that the Kenyan government must think twice on the treaties/conventions that it ratifies. It must at all times be brought in line with our national interests or in the furtherance of our national interests. Parliament must also play a major role since the constitution has given the executive law making powers which is the preserve of the legislature. The Legislature must engage fully in matters of foreign relations in order to judiciously debate on pertinent treaties and conventions that Kenya would be ratifying.

War as a foreign policy instrument is restricted to the approval of parliament (article 95[6]). The executive no longer has the power to unilaterally engage in war. This complicates matters for the executive as it has to convince parliament that a war that Kenya would want to be involved in is in her interests which could be a tough job.

Further, parliament is involved in the selection process of the country’s top foreign affairs officer. Parliament must vet presidential nominees for the positions of cabinet secretaries (article 152 [1] [2]) who must not be members of parliament (article 152 [1] [3]). It also has the power to sack the same secretaries for gross misconduct, gross violations of the constitution and suspicion of having committed a crime under municipal or international law (see article 152 for details).

Government officials on official visits abroad are not allowed to keep any gifts that they are given. Article 76 (1) requires them to submit the gifts to the state. This will prevent government officials from getting compromised especially in high stakes international economic negotiations.

A major inclusion in the constitution is the National Security Council under article 240. Its task is to integrate domestic, foreign and military policies. Its members are the president, the deputy president, and the cabinet secretaries responsible for foreign affairs, internal security and defense. The commander of the Kenya Defense Forces, Inspector General of Police and the Director General of the National Security Intelligence Service are also members.

The change here is that the cabinet secretary responsible for immigration has been excluded; maybe this docket will be fused with one of the ministries represented. This Council may very well be heavily involved in formulation of Kenya’s foreign policy as it will in its implementation.

Another major inclusion is that of the citizenry/public. They can now petition parliament on matters affecting the nation by dint of article 119. This means that informed Kenyans could question government on matters of foreign policy if they feel that it is not in line with Kenya’s national interests. This fact underscores the importance of civil education if the citizenry is to engage fully in the process of foreign policy evaluation.

Finally the president must submit a report in parliament for debate on the progress made to fulfill international obligations of the republic (article132[1] [c] [iii]). This ensures accountability on decisions made by the Kenya government at the international arena.

All in all, the constitution is but one element in domestic politics that will have an effect on the formulation of foreign policy. Therefore in the future evaluation of Kenya’s foreign policy, an examination of the constitutional provisions might give a good insight of top policy makers and influencers which in turn could be crucial in predicting the direction of our policy.

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