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CONSTITUTIONAL REGULATION OF THE FOREIGN AFFAIRS POWER IN KENYA: A COMPARATIVE ASSESSMENT

Published online by Cambridge University Press:  09 October 2002

J. B. OJWANG
Affiliation:
Faculty of Law, University of Nairobi
LUIS G. FRANCESCHI
Affiliation:
Faculty of Law, University of Nairobi

Abstract

This article is concerned with a specialized area of constitutional theory and practice, namely the regulation of the foreign affairs powers. Foreign affairs is a wide term which expresses more than mere relations. “Affairs” include matters and things, as well as relationships and a constitutional grant of legitimate plenary powerr. This entails that foreign affairs are matters relating to foreign countries, i.e. affairs other than domestic and, specifically, matters having to do with the interests of the home country in foreign countries. In this context, foreign affairs may be identified as a function. A function is an activity specially fitted for, appropriate to or expected of some particular type of operation because of its peculiar nature, or qualifications. The foreign affairs function, thus, as Bonfield says, may be in an activity specially fitted for, appropriate to, or expected of international relations—the interests of a state in foreign states—due to the peculiar nature or attributes of such relations. In addition, “power” may be defined as the competence to decide and act that is attached to a specific function. Hence the foreign affairs power is the competenbce to decide and act in matters having to do with the interests of the home state in foreing states. It is made up principally of the following elements: treay making, diplomatic relations, recognition of states and governments, and war and peace. Appropriate regulation of the elements of the foreign affairs power is a vital element of good governance in any particular state.

Type
Regular Article
Copyright
© 2002 School of Oriental and African Studies

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