The Evolution of Foreign Policy in Kenya
Kenya’s foreign policy is shaped by a complex interplay of constitutional provisions, historical influences, and evolving political dynamics. While the concept of “royal prerogative” is largely obsolete in modern governance, its legacy persists in the way power is distributed among different branches of government. In the UK, for example, the monarch still holds symbolic powers that are exercised on the advice of the government. This historical framework has influenced how some countries, including Kenya, approach the balance between executive authority and parliamentary oversight.
In Kenya, the president holds significant powers related to foreign affairs, such as appointing diplomatic representatives and receiving foreign envoys. These powers are not explicitly listed in the constitution but are included under the broader concept of “executive power,” which encompasses the entire Cabinet (Article 130). However, the president also has specific responsibilities, such as ensuring that Kenya fulfills its international obligations and reporting annually to Parliament on treaty compliance.
The 2002 Constitution Review Commission draft introduced several progressive ideas, including the recognition of refugee law and the importance of human rights reporting. These elements were notably absent in the 2010 Constitution, raising concerns about the erosion of certain protections. Despite this, the 2010 Constitution does provide a stronger foundation for international law, stating that treaties to which Kenya is a party are part of Kenyan law “under this Constitution.” This development reflects a more integrated approach to international obligations.
Ambassadors and the Appointment Process
One of the most contentious aspects of Kenya’s foreign policy is the appointment of ambassadors. Currently, the president appoints ambassadors with the approval of the National Assembly. Critics argue that this process can be influenced by political considerations, potentially undermining the professional integrity of the foreign service. The Foreign Service Act (FSA) of 2021 aims to establish a professional foreign service, but its implementation remains unclear.
The FSA states that nominations should reflect “a fair balance between career diplomats and other appointees.” However, the term “career diplomat” is vaguely defined, leaving room for interpretation. A recent study highlighted that in many European countries, the majority of ambassadors are career diplomats, while the United States has a more balanced approach with a significant number of political appointees. Kenya appears to be moving toward a similar model, with plans to introduce a 70:30 ratio between career diplomats and others.
The UK Constitution Society advocates for a merit-based selection framework for ambassadorial appointments, emphasizing transparency and public accountability. While Kenya’s recent sessional paper outlines potential criteria for appointments, it remains to be seen whether these will translate into meaningful reforms.
Declaring War and National Security
The question of who has the authority to declare war is another critical issue in Kenya’s foreign policy. The constitution requires Parliament to approve a declaration of war, but the definition of “war” is ambiguous. For instance, the US never officially declared war on Vietnam, yet it deployed millions of troops there. Similarly, Kenya has deployed troops in Somalia and the Democratic Republic of Congo without formal declarations of war.
The National Security Council plays a role in approving the use of Kenyan troops abroad, but this process is often retrospective. If the president were to order an invasion without declaring war, Parliament could theoretically block funding for such operations. However, the extent to which this would be enforced remains uncertain.
Recognizing Foreign States
Recognizing foreign states or rebel groups is a delicate process with significant implications. Ojwang and Franceschi argued that it is impractical to regulate this through law due to the complexity of international relations. Kenya’s shifting stance on issues like Western Sahara and Somaliland highlights the challenges of maintaining consistent foreign policy positions.
Recent decisions, such as allowing Somaliland to open an office in Nairobi, have raised questions about their impact on bilateral relations. Some argue that such moves should be made at the Cabinet level to ensure broader consultation and accountability. The role of courts in challenging these decisions also remains unclear, particularly in terms of public participation and legal clarity.
Conclusion
Kenya’s foreign policy continues to evolve, shaped by constitutional frameworks, historical legacies, and contemporary political realities. While the country has made strides in integrating international law into its domestic system, challenges remain in balancing executive power with democratic accountability. The future of Kenya’s foreign policy will depend on its ability to navigate these complexities while upholding the principles of transparency, inclusivity, and legal clarity.
