INTERNATIONAL LAW AND MUNICIPAL LAW

INTERNATIONAL LAW AND MUNICIPAL LAW


a) International law


This is either private or public international law and it is simply the law which governs
relations and disputes between sovereign states. Hence the parties involved shall be a
sovereign state versus another. However an individual of a particular state may as well be
involved in an international dispute with his won state or another.


Disputes under international law shall be addressed by the international court of justice
whose headquarters is at The Hague in Netherlands. The criminal branch of this court is
the ICC (International Criminal Court) which was established on 1
st July 2002 in
accordance with the law popularly referred to as the Rome Statute.
This court has unlimited territorial jurisdiction hence it can be convened within the
territory of any sovereign state.
Matters covered under international law include; border conflicts, economic crimes, crimes
against humanity, war crimes including genocide, international terrorism, piracy, election
violence etc





In order for a sovereign state to be subjected to the authority of the ICC it must be clear
that such state is either unable or unwilling to address the dispute locally in accordance
with her municipal law. It is rather unfortunate that international law is not as effective
and it was destined to be and one major reason is the fact that international law covers
very wide territories comprising of different sovereign states having different socioeconomic

and political ideologies. It is therefore not easy to harmonize these disparities
into one system of law. It also happens that the ICC does not have a police force of its

own and it will greatly rely on the goodwill and co-operation of sovereign states for
purposes of arresting suspects and presenting the relevant evidence. It is on the basis of
this fact that the international community tends to have a notion that procedures and
decisions under internal law shall be dictated by a few powerful sovereign states.


b) Municipal law


This is the law which is centralized to operate within the jurisdiction of a particular
sovereign state and it covers both the civil and criminal branches of law of such state.
This should be the law which is uniformly applied within the territory of Kenya is the
municipal law of Kenya.
Unlike international law, municipal law is very effective and direct and the main reason is
the fact that it covers smaller territories comprising of people who share a common
administrative structure and to some great extent a similar socio-economic way of life.
It is therefore quite rare for a person to deliberately disobey the municipal law of the land.
In as much as every sovereign state shall be expected to abide by international aw, each
state remains sovereign and equal to the others and its municipal law shall always be the
supreme law of that land.
Distinction between law and morality




 

Law (legal wrongs) Morality (moral wrongs)
These are rules made and enforced by
government for administration of justice.
Rules made by man concerning the preferred
upright human behavior in a particular
community.
Concerns the outward action of man and
rarely touches on his internal motive.
It concerns both the outward action of aman
and his internal motive.
It is definite and precise and it will in most
cases appear in written form.
It is vague and indefinite.
It is uniformand applies to a larger area
within the state
It is irregular and it differs fromone
community and period of time to another.
Force and the fear of punishment are the
main reasons behind obedience of the law
Moral conscious is the main reason behind
being morally upright.

 

It changes faster than morality because it
must consistently conform to socio
economic and political changes
Its change is not frequent and some moral
rules date back many years.

Ethics and the law


Ethics is the science of morality and it concerns itself with the moral right or wrong of
human behavior. It is developed with time and attempts to formulate the rules of conduct
which all people should observe so that they do not inconvenience others.
Ethics is not mandatory hence its not legally punishable. However, certain disciplines and
professions have with time identified and developed specific ethics to govern them.
Where this occurs the body incharge of such profession may push for the legislation of
ethics and they thereafter become legally enforceable. An example is with the legal
profession and accountancy where as the practicing Accountant/Auditor shall be
governed by provisions of the Accountancy Act CAP 531 , legal practitioners are governed
by provision of the Advocates Act CAP 1 6


Define professional misconduct and identify the main commissions and omissions that
constitute professional misconduct for the practicing accountant auditor.
Professional misconduct is defined as any conduct or behavior which is unbecoming of
the professional in his specific profession and it is therefore condemned by that
profession with regard to the practicing accountant, professional misconduct is that
conduct specifically condemned under the Accountant Act CAP 531
Main commissions


1 . Where the accountant allows a person to practice in his name as an accountant yet
such person does not possess a practicing certificate.


2. He enters into partnership as accountant with a person who does not possess a
practicing certificate.


3. Where he accepts fees or profits for the professional work of an advocate or
auctioneer, broker or other agent who does not possess a practicing certificate.


4. Where he publicly advertises his professional attainments or skills.


5. Where he discloses confidential information regarding his clients work without his
concept or as required by law.

6. Where he expresses his professional opinion in a financial statement of a business
in which he has a personal interest and he does not disclose this fact.


7. Where he charges fees regarding his professional services on the basis of
anticipated profit.


Main omissions


1 . Where he fails to disclose in a financial statement a material fact which he knows
to be false or misleading.


2. He fails to obtain sufficient information upon which to base his professional
opinion his clients work.


3. He fails to maintain a separate clients bank account and uses the same for his
accountancy business.


4. He fails to disclose to ICPAK any material statement which he knows to be false or
misleading.


5. He fails to respect any other statutory obligation expected of himas an accountant.


6. He fails in his legal duty of care as an expert and he is liable for professional
negligence.


Main principles to be followed by the practicing accountants


Integrity – he must remain honest, sincere and straight forward in his professional duty
as an accountant and avoid corrupt practice.
Professional independence-he must always apply his own mind when making submissions
and conclusions regarding his clients work and never rely on third parties without
supporting evidence or justified reasons.


Confidentiality –he must maintain professional confidentiality and secrecy in al matter
regarding his clients work and must never reveal such information to 3
rd parties unless
authorized by his clients or the law.


Professional competence-he must always maintain his legal duty of care to the highest
degree possible and avoid professional negligence.


Advertising and publicity-he must never publicly advertise his professional attainments or
services and should leave this matter to his satisfied clients.


Clients right to choose– he must always respect his clients right to appoint an accountant

of choice and must never unlawfully detain the clients property in order to retain such
client.


Clients funds-as a trustee, he must always maintain a separate clients bank account so as
to guarantee transparency and avoid misappropriation.


Main causes of Kenya law


Define the term sources of law and list the main sources of Kenya law in order of
hierarchy.


The terms ources of law refer to the origin of the rules of law and the organ through
which laws are created. This definition also covers the factors which contribute to the
content and existence of law.
Custom and religion do play a major role in shaping the laws of a particular state. A
source of law may be written or unwritten, local or foreign, principal or subsidiary.
The main sources of Kenya law are listed in the judicature act CAP 8. They are as follows;


a) Written sources

The Kenya constitution Acts of the parliament of Kenya (Direct Legislation)
 Specific Acts of the parliament of UK and one Act of the Parliament of India
 Statues of General Application in force in England as at 1 2th August 1 897
 Subsidiary Legislation (indirect Legislation)


b) Unwritten sources


The substance of common law and the doctrines of Equity
The substance of common law and the doctrines of equity
 Judicial precedent (case law
 African customary law
 Islamic law
 Hindu law


The Kenyan constitution
A constitution is a legal instrument which represents the legal framework of all the
laws within a state and it is upon this framework that all existing laws acquire their
legal validity.


A constitution lays down the main responsibilities and functions of government and
shows the expected relationships between government and the individual citizen.
The constitution is therefore a social contract which identifies the relationship
between the governed and the government.





A constitution may be written or unwritten flexible or rigid.
It is regarded rigid when its amendment process is technical and time consuming. The
Kenya constitution is written and rigid in form.
Doctrine of supremacy of the constitution
This is a constitutional concept which simply emphasizes that the constitution of a
sovereign state shall always remain its supreme and most authoritative legal
instrument to the extent that all other legal instruments and laws shall be subject to it.
This fact is clearly confirmed by making reference to the Kenya constitution in
accordance with following.


Upon its enactment in 1 963 and subsequent amendments it transformed the country
into the Republic of Kenya and in so doing it confirmed Kenya’s sovereignty and
international identify as a member of the international community.
It established government and formed the three main branches i.e judiciary, executive
and legislature.


It established the highest office in the land as office of the president and bestowed
upon the occupant, powers of head of state and of the government
It identifies the primary functions of each one of the government organs and also
provides the mode of appointment of chief officers into these branches.
It provides the fundamental rights and freedoms of the individual (also known as the
bill of rights) and guarantees their protection.


It outlines the procedure to be followed incase of its amendments and empowers
parliament with the responsibilities to oversee and enact such amendments.
The constitution has the force of law throughout the entire state and any law which
turns out to be inconsistent with any of the provisions of the Kenya constitution shall
be deemed null and void to the extent of such inconsistency.
Acts of the parliament of Kenya (direct legislation)
Legally the term legislation has two primary meanings i.e
The process of making the legal law
The product of such process
Legislation is either direct or indirect in form.
It becomes direct legislation when made by parliament and indirect when made by the
executive/judiciary.
The constitution empowers parliament with legislative authority and the law made is
then known as an act of parliament.
The process of direct legislation is undertaken by representatives of the people (Mps)
seating in the national assembly (also known as the August house).
Mps must firs table proposals before the speaker of the National Assembly and
proposals tabled in parliament for purposes for transforming them into law shall be
legally known as bills i.e. draft legislation. There are various types of parliamentary
bills but they can all be generally categorized into two; basing on the sponsor and the
target.


1 . The sponsor


a) Government Bills– these are proposals presented by a particular government
ministers.
– Priority is always given to government business because it is common practice for
government to bulldoze parliamentary proceedings in an effort to ensure that it
formulates as many laws as possible which shall favour its continued dominance.
The minister presenting the proposal must first seek cabinet approval. Cabinet is
simply the council of ministers and it comprises for the president and all ministers
including the AG who appears as its legal advisor and the head of public service
who shall be its secretary. The requirements of cabinet approval is strictly in
accordance with the principal of collective responsibility, whereby in modern
governance it is expected that cabinet shall work in consultation and as a team
with one voice to the extent that the consequences of decisions made by a minister
should be interpreted as consequences of decisions made by a minister should be
interpreted as consequences to be met by the entire cabinet upon cabinet
approving the proposal it shall be handed over to the AG for re-examination and
proper drafting into a bill by officers in the AG chambers known as legislative draft
persons. A duly drafted proposal shall thereafter be forwarded as a bill to
commence the parliamentary process.


b) Private Members Bills


These are proposals presented by an mp who will either be a minster or ordinary
MP. This provision is actually reserved for the ordinary MPs but it is not restricted
to thembecause ministers may as well adopt it.
Those shall arise where the particular ministers’ bill was rejected by parliament
and he still believes that it will be beneficial to the state if transformed to law.
The minister may therefore take the risk and present the bill as a private member.
The risk is in the fact that the minster will have out rightly negated the principal of
collective responsibility and it is quite likely that cabinet will sideline himto the
extent of himbeing demoted. In the alternative where a minister has a bill regarding
the development of his electoral constituency and he happens to be an elected m.p
for that particular constituency he will be expected to present his bill as a private
member bill.


Private member’s bill shall not receive the attention and technical assistance of
the AGs office and it will be upon the sponsor to organize the drafting of such a
bill.


THE TARGET


Public Bills


As the name suggests this are bills which deal with matters of public interest and they
are therefore general in application because they aimto affect the general public.
Most public bins shall originate fromthe governments side because priority is given to
the government side and it is the responsibility of government to safeguard public
welfare.


Private bills


These are selective in application because they aimto affect or benefit a particular
target, geographical or administrative locations, business community, corporate bodies,
constituencies etc


These bills will either be sponsored by an ordinary MP or a minster. In majority of the
instances where the bill is ministerial requests may have been made to the minster by
a corporate body under such ministry and the minister will then transformthe request
into a proposal for cabinet approval e.g the Media owners association may present a
request regarding regulation of broadcast programmes to the minster for information
who shall in turn consult with his permanent secretary and other stakeholders and
redraft the request into a proposal for cabinet approval.


Note: Ordinary bills and Constitutional bills. These do not forma different category of
bills hence they will fall under one of the already mentioned category. Generally a
constitutional bill shall be that bill which concerns the amending, repealing or
otherwise altering the framework of the existing constitution. Inorder for such bills to
be transformed to law they must be supported by at least 2/3 majority votes or 65% of
all the existing 222 MPs in the 2ns and 3rd readings.





Any other bill which is not a constitutional bill automatically becomes an ordinary bill
shall only require a simple majority vote in its favour.
Basing on the foregoing majority of parliamentary bills shall be ordinary bills because
it is rare for parliament to debate the amendments of the constitution. 

 

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