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Signature and ratification are supremely important in bestowing upon treaties, ‘entry into force’ at the international level. Within the jurisdictions of individual States, far much more legal procedures must be satisfied, for the signed and ratified treaty to find its way into the body of applicable and enforceable laws of the land. Treaty domestication must follow signature and ratification. However, experience demonstrates quiet clearly, that there is remarkable procrastination on the part of Kenya, Tanzania, and Uganda, in domesticating ratified treaties on human rights.
Of the 10 major treaties on human rights, and which include the so called ‘International Bill of Rights’ and key sub-regional treaties, the rate of domestication is below 5%. Given that the focus of human rights treaties, comprises matters of ‘life and death’ (capital punishment, reproductive health, public safety, sustainable environment, social security) for the respective right bearers, especially women, children, and the elderly, this omission has grave, even fatal consequences.
It becomes highly desirable therefore, to identify the factors standing in the way of domestication of treaties, and in doing so, contribute towards ensuring that treaty-based rights, are meaningful and accessible. But also, to propose alternative approaches to dealing with the problem of the bloated body of ratified, but unfulfilled treaties, in other words, ‘treaty constipation’. The questionable multiplicity (and attendant duplicity) of treaties is in a way, similar to what medical experts term ‘constipation’. In our context, it entails a bloated body of ratified treaties, which are ‘too hard and dry’ the end result being ‘indigestion’.
In jurisdictions belonging to the dualist legal system, tackling ‘treaty constipation’ is rendered particularly complex and difficult. And, as a result, the capacity of ratified, but undomesticated treaties, to ‘nourish’ their respective rights bearers, becomes severely compromised. In the world of medicine, constipation is addressed through a variety of procedures. Likewise, treaty constipation can be remedied.
Three possible options may be considered. The first entails termination or ‘weight loss’ of the bloated body of existing human rights treaties, thus attaining an acceptable ‘body mass index’ in other words, retaining only those treaties, which are fulfillable. Secondly, is the full exhaustion of the capacity and opportunities of existing human rights treaties. A third, and complementary option, is the declaration of a moratorium on the adoption of new human rights treaties, unless existing frameworks are proven to be wholly unsatisfactory. |
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