A National Assembly committee session on November 8, 2022. PHOTO | DENNIS ONSONGO | NMG
Parliament is seeking powers to amend international treaties signed by Cabinet Secretaries and other State officials through changes to the law governing ratification of the instruments.
The National Assembly’s Committee on Environment, Forestry and Mining wants the Treaty Making and Ratification Act 2012, amended to allow Parliament to make changes to instruments Kenya enters into with foreign countries before they are ratified by the House.
Currently, MPs have no power to make amendments to treaties or conventions that are binding to Kenya once the Cabinet approves their ratification by Parliament.
“What is the need for the Cabinet to forward treaties and conventions to Parliament for ratification when we have no power to even change a comma or amend certain clauses we feel are not in the interest of the country?” said David Gikaria, who chairs the committee.
“We are basically a rubber-stamping House. We will look at the Treaty Making and Ratification Act to propose amendments to allow us to make considered changes to treaties and instruments that Kenya signs before we ratify them.”
Mr Gikaria’s decision to amend the law followed revelations by Foreign Affairs PS Korir Sing’oei and his Environment and Climate Change counterpart, Festus Ng’eno, that the committee has no leeway to amend treaties and conventions once they have been signed between parties and approved by the Cabinet.
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“The committee cannot amend a treaty because it has a specific provision. But some treaties and conventions have provisions that allow them to be passed with reservations so that a state party can enter a reservation while depositing instruments of ratification.”
Dr Sing’oei and Mr Ng’eno appeared before the environment committee, which is scrutinising three treaties that the Cabinet wants Parliament to ratify.
The treaties include the Accession of the Bamako Convention, which seeks to ban imports into Africa and control transboundary movement and management of hazardous wastes in Africa.
The MPs also scrutinised the Kigali amendments to the Montreal Protocol on Ozone layer depletion.
The third treaty that MPs processed is the Amended Nairobi Convention and the Protocol on the Protection of Marine and Coastal Environments of the Western Indian Ocean from Land-Based Sources and Activities.
Dr Sing’oei told MPs that the Bamako Convention on the ban of hazardous wastes does not allow reservations.
He said Kenya withdrew on September 24, 2021, from the compulsory jurisdiction of the International Court of Justice (ICJ), which allowed dispute resolution between parties.
“It would be worth notifying the depository of this position through our instrument of ratification since it has an impact on the dispute resolution clause in the Bamako Treaty,” said Dr Sing’oei.
“Making full disclosure at the time of ratification is important as it may prevent unnecessary legal hurdles in the event of a dispute.”
Kenya is seeking a nod from Parliament to ban the importation of hazardous materials, including radioactive waste, into the country, in line with a continental pact to protect Africa’s borders from becoming a dumpsite for global manufacturers.
The National Assembly is expected to ratify the Bamako Convention, which bans the transboundary movement of hazardous waste.
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The convention, which was adopted under the auspices of the Organisation of African Unity in 1991 (now the African Union) and came into force in 1998, imposes an obligation on state parties to ban the importation and transit through their territory of hazardous wastes and substances for human health and environmental reasons.
About 35 African states have signed the convention, with Kenya appending its signature on December 17, 2003, but is yet to accede to it.
The Foreign Ministry said the most common hazardous wastes include wood, glass, scrap metal, textiles, kitchen wastes, and disposable nappies.
Exposure to high levels of radiation from nuclear waste can cause severe health effects and result in long-term health effects such as cancer and cardiovascular disease.
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