Treaty Making And Ratification (amendment) (no.2) Bill, 2024

SPECIAL ISSUE

Kenya Gazette Supplement No.37 (National Assembly Bills No.9)

REPUBLIC OFKENYA

KENYA GAZETTESUPPLEMENT

NATIONALASSEMBLYBILLS,2024

NAIROB26thFbruary,024

CONTENT

| Bill for Introduction into the National Assembly- | PAGE | |------------------------------------------------------------------|--------| | The Treaty Making and Ratification (Amendment) (No. 2) Bill,2024 | 289 |

THE TREATYMAKINGAND RATIFICATION (AMENDMENT)(No.2) BILL,2024.

A Bill for

AN ACT of Parliament to amend the Treaty Making and

Ratification Act and for connected purposes

ENACTED by the Parliament of Kenya,as follows

1. This Act may be cited as the Treaty Making and Short title. Ratification (Amendment) (No. 2) Act, 2024. 2. Section 2 of the Treaty Making and Ratification Act, 2012, (in this Act referred to as the"principal Act"),is amended by- 3. (a) inserting the following new definitions in their proper alphabetical sequence-

"accession" means the consent by Kenya to

be bound by a previously ratified agreement;

"economic treaty" means a treaty relating to taxation, trade or investment;

• (b) deleting subsection (2).

3. Section 3 of the principal Act is amended in sub section (2) -

• (a) by deleting paragraph (a) and substituting therefor
• the following new paragraph--
• "(a) multilateral treaties including treaties which deal with trade agreements where Kenya undertakes toengageinfewer trade protections with other countries to promote more trade.
• (b) in paragraph (b) by inserting the following new
• subparagraphs immediately after subparagraph (v)-
• "(vi) taxation,trade or investment;
• (vii) unilateral trade agreements between Kenya and any other country involving a one-sided arrangement in which Kenya benefits from lower trade barriers from the other country"

Amendment of section 2 ofNo. 45of2012.

Amendment of section 3 ofNo.

45of2012.

• 4.The principal Act is amended by inserting the following new section immediately after section 5-

Notification to the

National Assembly.

• 5A.(l) Within fourteen days of commencing negotiations for a treaty,the Cabinet Secretary responsible for matters relating tot the treaty shall notify the National Assembly of-
• (a) the negotiation objectives;
• (b) the proposed heads of agreement;
• (c) the need for the treaty;
• softhe
• (d) the potential benefits agreement to Kenya;
• (e) implications of the agreement on-
• (i)
• the economy;
• (ii)
• existing agreements;
• (iii) laws; and
• (iv) taxes.
• (2) The relevant Cabinet Secretary shall notify the National Assembly of any negotiation of a treaty within seven days of
• changes to information relating to the such change.
• (3) The relevant Committee of the National Assembly may,in so far as is practicallypossibleconferwiththe responsible Cabinet Secretary on areas that may attract reservations by the National
• Assembly.
• (4) The relevant Cabinet Secretary shall table an annual report to the National Assembly onthe status ofon-going negotiation of treaties.
• 5.Section 6 of the principal Act is amended by inserting the following new subsection immediately after subsection(l)-

Insertionofnew section5A inNo

45of2012.

Amendmentof section6ofNo

45of2012.

• (1A) In negotiating an economic treaty,the national executive or the relevant State department shall ensure that the terms of the treaty do not adversely affect-
• (a) the ability of country to mobilise domestic revenue;
• (b) the food security of the country;
• (c) the establishment and growth of local industries; and
• (d) the ability of the government to regulate an industry in the public interest.
• 6.The principal Act is amended by inserting the
• following new sections immediately after section 6-

Regulatory impact statement.

• 6A.(1) The relevant Cabinet Secretary shall, prior to signing an economic treaty, prepare a regulatory impact statement.
• (2) A regulatory impact statement shall in respect to the proposed economic treaty in clear and
• contain information precise language including-
• (a) a statement of the objectives of the proposed treaty and the reasons for
• it;
• (b) a statement explaining the effect of the proposed treaty on the Kenyan economy;
• (c)a statement of other practicable means of achieving the objectives
• of the proposed treaty;
• (d)an assessment of the costs and benefits of the proposed treaty and of any other practicable means of achieving the same objectives;and
• (e) the reasons why the other means are
• not appropriate.
• (3) The assessment of the costs and benefits shall specify an assessment of the economic,environmental and social impact

Insertion ofnew 6B in No.45of

sections 6A and 2012.

Notification of

regulatory impact statements.

• and resource

and the likely administration compliance costs including allocation costs.

• (4) The relevant Cabinet Secretary shall ensure that independent advice as to the adequacy of the regulatory impact statement and of the assessment included in the regulatory impact statement is obtained and considered.
• (5) The responsible Cabinet Secretary shall before an economic treaty is signed,

3. give a certificate in writing specifying that- 4. (a) the requirements relating to regulatory impact statements in this Act have been complied with;and 5. (b) in the Cabinet Secretary's opinion, the regulatory impact statement adequately assesses the likely 6. impact of the proposed treaty.

• (6) The relevant Cabinet Secretary shall ensure that a copy of the regulatory impact statement and the certificate is tabled in the National Assembly with the economic treaty.

8. 6B. (1) Preparation of a regulatory impact statement for an economic treaty shall be notified in the Gazette and in a newspaper likely to be read by people 9. particularly affected by the proposed treaty.

• (2) If the proposed treaty is likely to have a significant impact on a particular group of people, the notice shall be published in a way likely to ensure members of the group understand the purpose and

11. content of the notice.

• (3) The notice shall-

13. (a) include a brief statement of the 14. policy objectives sought to be achieved by the proposed treaty;

• (b) state where copies of the regulatory impact statement may be obtained or inspected;
• (c) state that anyone may comment on
• the proposed treaty;
• (d) state how and when comments may be made;and
• (e) state how consultation about the proposed treaty will take place.
• (4) The notice shall allow at least fourteen days from publication of the notice for the making of comments.
• (5) A copy of the regulatory impact statement may be available free,or on payment of a reasonable price, at the place, or each of the places, stated in the notice.
• (6) The responsible Cabinet Secretary
• shall ensure that-
• (a) all comments and submissions are considered before an economic
• treaty is made;and
• (b)acopy of all comments and submissions is submitted to the National Assembly as soon as practicable after the economic treaty is tabled or when requested by the relevant Committee.

7. Section 8 of the principal Act is amended by deleting subsection (5) and substituting therefor the

• following new subsections-

Amendment of

section8of No. 45of2012.

• "(5) The National Assembly may introduce any reservations as a provision into a treaty.
• (5A) Where the National Assembly introduces a reservation under this section,the Clerk of the National Assembly shall indicate,in writing,to the relevant Cabinet Secretary the specific clause or clauses of a treaty for which the National Assembly proposes to make reservations and shall specify the reasons for which the reservations are made.

8. The principal Act is amended by inserting the

• following new section immediately after section 9 -

Procedure during the ratification process at the National Assembly.

• 9A.(1) A treaty submitted to the National Assembly for ratification shall be laid on the Table of the House and shall upon being laid,stand committed to the relevant Committee for consideration.
• (2) A committee to which a treaty is committed for consideration,shall undertake public participation before submitting its report to the House.
• (3)In addition to the information required to be submitted to the National Assembly under written law,the committee may require the relevant Cabinet Secretary to submit further information,including-
• (a) the social and environmental impact of the treaty in the short-term, medium-term and long-term;and
• (b) the nature and evidence of any public participation conducted on the treaty.
• (4) The report of the committee to the
• House shall include-
• (a) information on the views of the people on the ratification of the treaty emanating frompublic participation conducted by the committee;

Insertion of a new section 9A in No. 45of2012.

• (b) the findings of the committee on the treaty and any other information the committee may deem necessary;
• and
• (c) a recommendation that the House-
• approves the ratification of the
• treaty;
• (ii) approves the ratification of the treaty with reservations,or;
• (ii) rejects the ratification of the treaty.
• (5) In approving ratification of a treaty with reservations, the House shall specify the affected provisions of the treaty and the proposed text of each reservation,which may include prescription of timelines within which an obligation is to be fulfilled before implementation of the treaty.
• (6) Where theR Housemakesa resolution in respect to a particular treaty, the Clerk of the National Assembly shall, within seven days,notify the relevant Cabinet Secretary and shall enter the information in the register of treaties.

9. Section 10 of the principal Act is amended by inserting the following new subsection immediately after subsection(1)-

• "(1A) The relevant Cabinet Secretary may at the point
• of ratifying a treaty under this Act,be accompanied by the Leader of the Majority Party or the Leader of the Minority Party of the Party forming the Government, or a representative.

Amendment of

section 10 of No. 45 of 2012.

MEMORANDUM OF OBJECTS AND REASONS

Statement of objects and reasons for the Bill

The principal object of this Bill is to amend the Treaty Making and

economic treaties,strengthen the participation of the National Assembly in the treaty making process and to generally enhance efficiency in the treaty making process.

Clause 2 of the Bill seeks to amend section 2 of the Act to define the

terms "accession"and economic treaty".It also seeks to delete section 2(2) which makes reference to the first elections under the Constitution as the same has been spent.

Clause 3 of the Bill proposes to amend section 3 of the Act to include economic treaties in the list out of treaties that the Act applies to under the section. This will extend the application of the Act to treaties relating to taxation, trade and investment matters.A special enactment procedure for this type of treaties is required due to their significant economic and social impacts on various sectors of the economy.The additional procedures and mechanisms for scrutinizing economic treaties is aimed at complying with the principles and values of the Constitution on public consultation,sustainable development,robust representation and promotion of social and economicrights.

Clause 4 of the Bill seeks to amend the Act to introduce a new section 5A requiring the Executive to engage the National Assembly upon commencing negotiations of a treaty. This is aimed at eliminating the existing problem where the National Assembly only becomes seized of treaty matters at the tail end of the treaty making process. The active participation of the National Assembly in the Treaty Making process will not only enhance transparency and accountability in the process but it will also mitigate against risks attendant to the structure of treaties that regulate the flow of investment.

Clause 5 of the Bill seeks to amend section 6 of the Act to ensure

that the Kenya does not enter into treaties that jeopardize the ability of the country to mobilize tax resources domestically.It is further intended that no agreement which has the effect of undermining national food security should be concluded by the Executive.The amendment is also intended to ensure that treaties concluded by government do not undermine the establishment and growth of local industries or the ability of the government to regulate any particular industry in public interest by limiting the ability to pass laws or regulations for matters such as protection of the environment.

Clause 6 of the Bill seeks to amend the Act to inserta new section 6A and 6B. The new sections require the Executive to have undertaken a regulatory impact assessment prior to the initiation of the treaty making process. This will ensure that a proper cost-benefit analysis is carried out foster stakeholder participation in the treaty-making process as a copy of the regulatory impact statement,is supposed to be made available to the general 1population,who may then make relevant comments on the documents.A proposal has also been made in the amendment that the public comments are supposed to be submitted to the National Assembly by the Cabinet Secretary for consideration The amendment further seeks to solve the existing problem in section 6(l) of the Act which does not provide the specific procedure for public participation. The section leaves room for error as it is unclear what quantum of public participation is sufficient. The amendment therefore seeks to create a greater sense of accountability in the treaty making process.

Clause 7of the Bill seeks to amend section 8 of the Act to outline the procedure for making reservations to a treaty.The amendment requires the National Assembly to indicate to the national executive the specific clause or clauses of a treaty for which it proposes to make a reservation and the reason for which the reservation is made.The amendment further precludes the national executive from concluding any treaty without effecting a reservation made by the National Assembly.

Clause 8 of the Bill seeks to insert a new section 9A to provide for the procedure during the ratification process at the National Assembly.It provides for committal to the relevant Committee, submission of further informationby the CabinetSecretaryand thecontents of the reportof the Committee.

Clause 9 of the Bill provides for the amendment of section 10 of the Act to allow the Leader of Majority Party or Minority Party or their representatives to accompany the Cabinet Secretary at the point of treaty ratification.

Statement on the delegation of legislative powers and limitation of fundamental rights and freedoms

This Bill does not delegate any legislative powers or limit any fundamental rights or freedoms.

Statement on whether the Bill concerns county governments.

The Bill does not concern county government as treaty- making and

ratification falls under the functions of foreign affairs,foreign policy,and international trade,which are functions of the national government under paragraph 1 of Part I of the Fourth Schedule to the Constitution.

Statement as to whether the Bill is a money Bill within the meaning of Article 114 of the Constitution

The enactment of this Bill shall not occasion additional expenditure ofpublic funds.

Dated the 26th February,2024.

GEORGEGITONGAMURUGARA,

Chairman,Justice and Legal Affairs Committee,National Assembly.

Section 2 of Cap 4Dwhich it isproposed to amend

2.Interpretation

• (1) In this Act,unless the context otherwise requires-

""bilateral treaty" means an agreement concluded between Kenya and

any other State or between Kenya and an international organisation;

"Cabinet Secretary"means the Cabinet Secretary for the time being responsible for mattersrelating to foreign affairs.

"full powers" means all those powers conferred, by way of a legal document, to a person or persons designated by a competent state authority,torepresent the Stateornegotiating,adopting,or authenticating the text of a treaty,for expressing the consent of the State to be bound by a treaty,or for accomplishing any other act with respect of a treaty;

"international organization" means an intergovernmental

organization;

"ratification"means the international act by which the State signifies its consent to be bound by a treaty and includes acceptance, approval and accession where the treaty so provides;

14;

"Registrar' means the Registrar of Treaties appointed under section

"Registry" means the Registry of Treaties established by section 10;

"relevant Cabinet Secretary"means the Cabinet Secretary for the time being responsible the subjectmatter of the treaty;

"relevant state department" means the state department responsible for the subject matter of the treaty to be approved for ratification;

"reservation"means a unilateral statement made by a State when signing,ratifying,accepting,approving or acceding to a treaty,whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State;

"signature"means an act whereby the State expresses its willingness to consent to the text of a treaty and has the effect of obligating the said State, even though it may not be a party to the treaty, to refrain, in good faith,from acts that would defeat the object and purpose of the treaty;

"treaty"means an international agreement concluded between States in written form and governed by international law,whether embodied in a single instrument or in two or more related instruments and whatever its particular designation and includes a convention.

• (2) Despite subsection (1),until after the first elections under the Constitution,references in this Act to the expression "Cabinet Secretary and "State Department"shall be construed to mean "Minister"and "Ministry"respectively.

Section3 of Cap 4Dwhichit isproposed to amend

• 3.Application
• (1) This Act applies to treaties which are concluded by Kenya after the commencement of this Act.
• (2) This Act shall apply to-
• (a)multilateral treaties;
• (b) bilateral treaties which deal with-
• the security of Kenya,its sovereignty,independence,unity
• (i or territorial integrity;
• (ii) the rights and duties of citizens of Kenya;
• (ii) the status of Kenya under international law and the
• maintenance or support of such status;
• (iv) the relationship between Kenya and any international organisation or similar body;and
• the environment and natural resources.
• (3) A treaty relating to the adjustment, alteration or variation of the present position of Kenya on matters of sovereignty,independence and territorial integrity shall be approved in a referendum in accordance with
• Article 255 of the Constitution:

Provided that the process of ensuring that the boundaries are correctly

marked on the ground in accordance with the instruments establishing them shall not be deemed to amount to adjustment,variation or alteration under this section.

• (4) Notwithstanding subsection (2)(b), the Government may enter into bilateral agreements-

2. (a) necessary for matters relating to government business; or 3. (b) relating to technical, administrative or executive matters.

Section6ofCap 4Dwhichitisproposed toamend

6.Values and principles in negotiating treaties

• (1) In negotiating treaties,the national executive or the relevant State department shall be bound by the values and principles of the Constitution; and shall take into account the regulatory impact of any proposed treaty.
• (2) When appointing persons to negotiate a treaty, the national competent to undertake such negotiations in the interest of the people of Kenya.

Section8 of Cap 4Dwhichit isproposed to amend

• 8.Consideration by Parliament
• (1) Where the Cabinet approves the ratification of a treaty,the Cabinet Secretary shall submit the treaty and a memorandum on the treaty to the Speaker of National Assembly.
• (2) Deleted by Act No. 18 of 2014,Sch.
• (3) Therelevant parliamentary committee shall,during its consideration of the Treaty,ensure public participation in the ratification process in accordance with laid down parliamentary procedures.
• (4) The National Assembly may approve the ratification of a treaty with or without reservations to specific provisions of the treaty.
• (5)Aproposed reservation shall be introduced as aprovision into the treaty in accordance with the procedure set out in the Standing Orders.
• (6) Deleted by Act No. 18 of 2014, Sch.
• (7) Where the National Assembly refuses to approve the ratification ofa treaty,the Clerkof theNational Assembly shall submit theresolution of the House to the relevant Cabinet Secretary within fourteen days of the resolution.
• (8) Deleted by Act No. 18 of 2014, Sch.
• (9) The National Assembly shall not approve the ratification of a treaty or part of it if its provisions are contrary to Constitution,nor shall the House approve a reservation to a treaty or part of it if that reservation negates any of the provisions of the Constitution even if the reservation is permitted under the relevant treaty.

Section 10 of Cap 4Dwhich it isproposed toamend

10.Ratification of Treaty

• (1) All instruments of ratification of a treaty shall be signed,sealed and deposited by the Cabinet Secretary at the requisite international body and a copy thereof shall be filed with the Registrar.
• (2) Where a treaty ratified under this Act is subsequently amended or modified,the amendment or modification shall be ratified only after compliance with the procedure set out in this Part.
• (3) The provisions of subsection (2) shall apply similarly to protocols signed under a treaty.