The National Assembly during a past session.
The government will be forced to notify MPs within 14 days of initiating treaty negotiations, if lawmakers adopt a report by the Defence and Foreign Affairs Committee.
In its report tabled in Parliament on the consideration of the Treaty Making and Ratification (Amendment) Bill, 2024, the committee says the move is aimed at ensuring that MPs are aware of matters under negotiation at an early stage.
"The Bill seeks to strengthen the involvement of the National Assembly in the treaty-making process by requiring the relevant national executive or the relevant Ministry of Foreign Affairs to notify the National Assembly within 14 days of the commencement of the treaty-making process," the report says.
"This amendment seeks to ensure that the National Assembly is involved in treaty matters at the initial stages of the treaty-making process, leading to greater transparency and accountability," the report says.
Through this amendment, MPs are seeking to assert their authority in the treaty-making process, as they are currently largely reduced to rubber stamps on treaties that come to Parliament after they have already been signed by the government and approved by the Cabinet.
In the 12th Parliament, while considering the Economic Partnership Agreement (EPA) between Kenya and the United Kingdom, MPs claimed that some sections were skewed to give British traders an upper hand over their Kenyan counterparts.
Ratified treaties
The committee argues in its report that Article 2 (6) of the Constitution incorporates ratified treaties or conventions into the laws of Kenya and therefore the National Assembly should be involved in the legislative process.
The Committee also noted that under Article 94(5) of the Constitution, no person or body other than Parliament has the power to make any provision having the force of law in Kenya.
Section 8 of the Treaty Making and Ratification Act, 2012 provides for the consideration of treaties by Parliament. Upon approval of a treaty by the Cabinet, the relevant Cabinet Secretary submits the treaty, together with a memorandum on the treaty, to the Speaker of the National Assembly for tabling.
After tabling, the relevant parliamentary committee in the National Assembly reviews the treaty and ensures public participation in the ratification process.
MPs normally have three options in the treaty ratification process. They can refuse to approve ratification, approve ratification without reservations, or approve ratification with reservations on certain provisions of the treaty.
If MPs reject ratification of a treaty, the Clerk of the National Assembly must submit the House resolution to the relevant Cabinet Secretary within 14 days of the decision and the Government will not ratify the treaty in question.
Reservation
However, if MPs approve ratification without any reservations, the relevant Cabinet Secretary will prepare instruments for ratification of the treaty within 30 days of the date of approval.
If MPs approve the ratification of a treaty with reservations, the reservations are introduced as a provision of the treaty and form part of it.
MPs may approve the ratification of a treaty with reservations if some of its provisions are contrary to the Constitution and negate the provisions of the Constitution and therefore cannot be part of the treaty without the expression of the reservation.
Under Standing Orders 170A, if Parliament approves the ratification of a treaty with reservations, it must specify the provisions of the treaty concerned and propose each of them.
The Executive is also required to take into account reservations expressed by the legislature on specific clauses of a treaty before concluding treaty negotiations.
During the public consultation, the Foreign Office had opposed this proposal, expressing concern that it would place restrictions on treaty negotiations.
"This proposal may be a limitation during treaty negotiations, considering that the negotiation of bilateral agreements is conducted in a win-win/give-take manner. In addition, the National Assembly has the opportunity to express reservations during the public participation process conducted by the executive," the ministry said.
The Defence Committee, however, said it was not bound by the conclusion of treaties before expressing its reservations on a treaty.
"The National Assembly can make reservations. This is purely discretionary and therefore the National Assembly is not bound to conclude treaties with reservations," the report said.
Clause 7 of the bill, sponsored by Justice and Legal Affairs Committee chairperson George Murugara, seeks to amend section 8 of the Treaty Making and Ratifications Act, 2012, on the procedure for making reservations.
“The amendment requires the National Assembly to notify the national executive of the specific clause or clauses of a treaty in respect of which it proposes to make a reservation and the reason for the reservation. The amendment also prevents the national executive from entering into a treaty without giving effect to a reservation made by the National Assembly," the bill reads.
However, the committee rejected a proposal in the bill to have the majority leader accompany the relevant cabinet secretary during the ratification of treaties.
"This may violate the constitutional doctrine of separation of powers," the committee said in its report.
