Post on 22-Jan-2023
Electronic copy available at: http://ssrn.com/abstract=2142977
INTERNATIONAL LAW VERSUS MUNICIPAL LAW: A CASE
STUDY OF SIX AFRICAN COUNTRIES; THREE OF WHICH ARE
MONIST AND THREE OF WHICH ARE DUALIST
By
Duru, Onyekachi Wisdom Ceazar*
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Abstract
The relationship between international law and municipal law
has traditionally been characterized from a monist or dualist
perspective. While this characterization remains contested, the
approach a country adopts has a great significance for the
effectiveness and application of international law within the
domestic legal system. This paper discusses the relationship
between international law and municipal law with illustrations
from six African countries; three of which are monists and three
of which are dualists. In so doing, attempt has been made to
support each position with relevant judicial authorities from the
countries examined. Lastly, the paper suggests that the
increasing use and relevance of international law in national
legal systems in Africa reveal a great deal about how open
African countries are becoming to the influence of international
law.
* Contact: Email: onyekachiduru@gmail.com; Tel: +234-8037707496.
Electronic copy available at: http://ssrn.com/abstract=2142977
2
Introduction
Much juristic ink has flowed in an attempt by international law
scholars to dissipate the fog beclouding the true relationship between
international law and the domestic jurisdiction of state. The difficulty in
attaining finality of opinion in this area of study perhaps lies with fact that the
factual background to international law is different from that of municipal
law. Indeed, international law has developed in a form which is different
from that of municipal law. It is instructive that domestic legal system is
characterized by the presence (within its domestic legal order) of a
legislature, courts with compulsory jurisdiction and centrally organized
sanctions.
These paradigms largely mirror the fundamental elements by reference
to which a modern domestic legal order is conclusively ascertained. On the
order hand, international law lack these basic features with the result that it
falls, prey to the persistent doubt that international law is not really law. At
best according to Kelsen it is positive morality. Unarguably, the existence of
these features by which municipal legal system is determined accounts for
much of its binding characters: a virtue which international law is often
denied. It is the virtue namely the binding character of international law that
is at the heart of all speculations or debates concerning the extent to which
rules of international law are enforced in domestic jurisdictions.
3
The outcome of the prolonged reflections by writers and jurists on this
debate are the various illuminating theories each seeking to place the
relationship between international law and municipal law in proper
perspective. Thus, the theory of Monism, Dualism, Incorporation and
Transformation emerged to elucidate with varying degree of success the
subject matter under study.
Implicit in each theory, is the recognition that interaction between
international and municipal law must take place within the context of a clear
legal framework. Interestingly, the various theorists who formulated these
theories espoused different persuasive basis upon which they sought to justify
their views. However, none of the theories are immune from limitations.
It is intended in this paper to briefly discuss these theories particularly
the light of the relationship between international law and municipal law. In
other words, the aim of this work is to highlight the different approaches of
states in the implementation of international law in their municipal realm. In
so doing, reliance will be placed on the constitution of some selected African
states, three of which will be monist and the other three of which will be
dualist.
Concise Commentary on Key Concepts
This is aimed at a brief commentary on the meaning and nature of the
relevant key terms in this paper, which include: “International Law”;
“Municipal Law”; “Monism”; “Dualism” and “Constitution”.
4
International Law
According to the Black’s Law Dictionary1 “International Law” is
defined as:
The legal system governing the relationship
between nations; more modernly the law of
international relations, embracing not only nations
but also such participants as international
organizations and individuals (such as those who
invoke their human rights or commit war crimes).
The dictionary further states, at the same place, that the concept is also
termed “public international law; law of nations; law of nature and nations;
jus gentium; jus gentium publicum; jus inter gentes; foreign-relations law;
interstate law between states (the word state in the latter two phrases being
equivalent to “nation” or “country”. Consequently, international law may be
described as the law or rules that regulate the conduct of states and other
entities which at anytime are recognized as being endowed with international
personality.
We can conceive of international law in terms of its functions, its
sources or its actors. However, whatever conception of the subject-matter that
is adopted, it should be borne in mind that the definition of International Law
has changed with time from the traditional conception2 to a modern approach
1 B. A. Garner (Ed. in Chief), Black’s Law Dictionary Eight Edition (United States: Thomson West, 2004) at
835. See also, I. M. O Nwabuoku, “International Law vis-à-vis Municipal Law: A Close Look at
ABACHA v. FAWEHINMI” (2007) 2 Igbinedion University Law Journal 152. 2 See U. O. Umozurike, Introduction to International Law Second Edition (Ibadan: Spectrum Books
Limited, 1999) at 1. See also Denning L. J. in Trendtex Trading Corporation v. Central Bank of Nigeria
(1977) 1 ALLER 801 at 901-2, where the Law Lord defined international as “the sum of rules or usages
which civilized states have agreed shall be binding upon them in their dealings with one another…”. See
5
which recognizes the continuous expansion of the scope, subject and subject-
matter of the term.
Furthermore, international conventions, whether general or particular,
international customs, general principles of international and internal law,
judicial decisions of international tribunals and juristic opinion are the
materials and processes out of which the rules and principles regulating the
international community are developed.3
Municipal Law
The Black’s Law Dictionary,4 defines the term “Municipal Law” as:
1. The ordinances and other laws applicable
within a city, town or other local
government entity.
2. The International Law of a nation, as
opposed to International Law.
Again “Municipal Law” is the technical name given by international
lawyers to the national or internal law of a state.5 Therefore, whereas
also, L. Oppenheim, International Law (New York: Longmans, Green & Co., 1905) at 1-2, where
international law was defined as the name for the “body of customary and conventional rules which are
considered legally binding by civilized states in their intercourse with each other.” He added that it is “a
law for the intercourse of states with one another, not a law for individuals” and that it is “a law between,
not above, the single states”. See also the definition by E. C. Stowell, International Law (New York: Holt,
1931) at 10, thus, “international law embodies certain rules relating to human relations throughout the
world, which are generally observed by mankind and enforced primarily through the agency of
governments of the independent communities into which humanity is divided.” In P. C. Jessup, A Modern
Law of Nations (New York: Macmillan, 1948) at 15-16, international law was defined “as law applicable
to relations between states.” Compare P. C. Jessup, Transnational Law (New Haven: Yale University
Press, 1956), where the author recognized the individuals are becoming subject to international law. See
also, M. S. McDougal, et. al., Studies in Public World Order (New Haven: Yale University Press, 1960)
and M. S. McDougal, “International Law, Power and Policy: A Contemporary Conception” (1953) 82 Re-
cueil des Cours 137. Additionally, see the definition in C. G. Fenwick, International Law (New York:
Century, 1924) 24 quoted with approval by N. D. Palmer & H. C. Perkins, International Relations: The
World Community in Transition Third Revised Edition (Delhi: Virender Kumar Arya for A. I. T. B. S.
Publishers & Distributors, 2007) at 266-267. 3 See generally Article 38(1) of the Statue of the International Court of Justice which is widely recognized as
the most authoritative statement as to the source of International Law. 4 B. A. Garner, op. cit. at 1043.
6
municipal law governs the domestic aspect of government and deals with
issues between individuals and between individuals and the administrative
apparatus; International Law focuses primarily upon the relations between
states.6
Monism
Monism is one of the theories advanced to explain the relationship
between international and domestic law. Exponents of this theory are referred
to as monists. Monists hold that International Law and State Law share a
common origin-namely law.7 Thus, the duo is the two branches of unified
knowledge of law which are applicable to human community in some way or
the other. The broad thrust of the theory of monism is that both international
law and municipal law are facets of same phenomenon.
Again, monists view international and national law as part of a single
legal order. Thus, International Law is directly applicable in the national legal
order. There is no need for any domestic implementing legislation;
international law is immediately applicable within national legal systems.8
5 See M. Akehurst, A Modern Introduction to International Law (New Delhi: George Allen & Unwin
[Publishers] Ltd, 1990) at 43. 6 See, M. N. Shaw, International Law Fifth Edition (Cambridge: Cambridge University Press, 2003) at 121.
Also, it is instructive to point out that although states are the primary subject to international law, the
development of international relations in recent times, especially the setting-up of a great number of
international institutions and the international recognition of the rights and duties of groups of individuals
have to a large extent brought these entities within its purview. 7 See, S. O. Ayewa, “The Symmetry between International Law and Municipal Law: A Nigerian
Perspective” (2004) 1 DELSU Public Law Series, 85; see generally also, I. Brownlie, Principles of Public
International Law (Oxford: Oxford University Press, 1979) at 32-34. 8 See, R. F. Oppong, “Re-Imaging International Law: An Examination of Recent Trends in the Reception of
International Law into National Legal Systems on Africa” (2006) 30(2) International Law Journal 2.
7
Indeed, to monists, international law is superior to national law.9 More will
be said on this theory as we progress in the proper.
Dualism
This is another theory advanced to explain the relationship between
International Law and Domestic Law. At the heart of the theory of dualism
lies the premise that international law and municipal law are two separate and
distinct orders, in their objects and spheres of operation, such that the norms
of one would not operate within the realm of the other without a positive act
of reception or transformation, as the case may be.10
It is only after such transformation that individuals within the same
may benefit from or rely on the international (now national) law. To the
dualist, international law could not claim supremacy within the domestic
legal system although it was supreme in the international law legal system.11
More will be said on this theory later on as we progress in this paper.
Constitution
The Black’s Law Dictionary,12
defines the term “Constitution” as:
1. The fundamental and organic law of a nation
or state that establishes the institutions and
apparatus of government, defines the scope
of government sovereign powers and 9 However, it is not all monists who adhere to such a conception of a relationship between national and
international law. For instance, although Kelsen was an advocate of Monism he did not argue that
International Law may be subjected to particular norms within the national legal system. In other words, to
him, monism required only that legal norms be part of a single system of law but left open the question of
the relationship between the norms. 10
See, S. O. Ayewa, op. cit. at 86-87. 11
A classic illustration of this rule is the rule that a state cannot rely on its domestic rules to negate its
International obligation. 12
B. A. Garner, op. cit at 331.
8
guarantees individual civil rights and civil
liberties.
2. The written instrument embodying this
fundamental law together with any formal
amendments.
Accordingly, while a constitution seeks to provide the machinery of
government, it also gives rights and imposes obligations.13
Thus, in Minister
of Home Affairs v. Fisher,14
the Privy Council defined a “constitution” as “a
legal instrument giving rise, amongst other things to individual rights capable
of enforcement in a court of law”. Therefore, once the powers, rights and
limitations under the constitution are identified as having been created, their
existence cannot be disputed in a court of law.
Again, a constitution is an instrument of government under which laws
are made and not merely an Act or a Law. This is in tandem with the opinion
of Karibi-Whyte, JSC15
in the case of Miscellaneous Offences Tribunal v.
Okoroafor.16
In that case, the Lord Justice opined that:
The constitution of the country is like fundamental
law, the fons et origo of all laws the exercise of all
powers and the source from which all laws
institutions and persons derive their authority.
13
See the Nigerian Case of P.D.P. v. INEC (2001) FWLR (Pt. 31) 2735 at 2776-2777. 14
(1980) AC. 319 at 329. See also, the case of Anaka v. Lokoja (2001) 4 NWLR (Pt. 702) 178 where the
Nigerian Court of Appeal described a constitution as the grundnorm of the country. Also, in Attorney-
General of Ondo State v. Attorney-General of The Federation & 35 Ors. (2002) 9 NWLR (Pt. 772) 222 at
418-419; Uwaifo, JSC while describing the Nigerian constitution opined as follows: “it must be
recognized that our constitution is an organic instrument which confers power and also creates rights and
limitations. It is the Supreme Law in which certain first principles of fundamental nature are established. 15
As he then was. 16
(2001) 8 NWLR (Pt. 745) 295 at 350.
9
It can thus be seen that the constitution of a Country or anybody polity
is its fundamental or organic law through which all law, authorities or actions
derive their Legitimacy.17
It is the general legal framework that defines
describes and limits exercise of powers rights and obligations and the modes
and limitations of their exercise thereof.
International Law and Municipal Law
International law and municipal law have traditionally addressed
relatively different issues. International law is largely but not altogether
concerned with relation among states; whereas municipal law controls
relations between individuals within a state and between individuals and the
state. Also, they differ altogether in their judicial processes. Both are usually
applied by national court, which results in complete decentralization of the
judicial function in international law and effective centralization in municipal
law.18
What is true of the judicial function is also true of the executive
function. As in tort in domestic law, traditional international law always
depended for its enforcement upon the initiative of the injured party. Most
municipal law, on the other hand, is enforced by a responsible executive
unknown to international law.19
17
See generally, S. Tar. Hon., Constitutional Law and Jurisprudence in Nigeria (Port Harcourt: Pearl
Publishers, 2004) at 4. 18
See D. N. Palmer and C. H. Perkins, International Relations: The World Community in Transition Third
Revised Edition (India: A.I.T.B.S Publishers & Distributors, 2007) at 274. 19
Ibid.
10
Conversely, international law and municipal law are similar in their
sources,-chiefly customs and express agreements-with however substantial
differences in legislative machinery. In fact, in recent times however, it can
not be denied that there is gradual convergence of interest and the ultimate
goal of both is to secure the well-being of individuals. Areas where this
common goal manifests itself include human rights law,20
environmental law
and commercial law, areas where there is increasing interaction between
national law and international law.21
Thus, international law and national law
shares a lot in common and an attempt to compartmentalize or isolate them
will be analytically flawed and practically inapposite at present.
Traditional Theories on the Relationship Between International Law and
Municipal Law
Different theories about the relationship of domestic and international
law compete for acceptance.22
However, traditionally, the interrelationship
between international law and municipal law is regulated by two rival
20
See generally, C. M. Peter, “Fundamental Rights and Freedoms in Kenya: A Review Essay” (1991) 3(1)
AJICL 64; E. C. Ibezim, “Right to Life under International Human Rights Law: A Gender Perspective”
(2008) 10 ABSU L.J. 16; M. O. Unegbu, “Resolving the Dilemma of Hierarchy Between the African
Charter and the Nigerian Constitution” (1999) 6(1) ABSU L.J. 13; M. O. Unegbu, “Human Rights
Enforcement in Nigeria: Some Procedural Problems” (1996) 1 ABSU L. J. 1; U. O. Umozuruike, “The
African Charter and National Laws: The Issue of Supremacy” (2003) 8 ABSULJ 1; A. O. Enabulele,
“Unification of the Applications of Principles of International Law in the Municipal Realm: A Challenge
for Contemporary International Law” (2008) 11(1) & (2) Uniben L.J. 125.; R. C. Changani, “Chadian
Asylum Seekers and the Nigerian Refugee Law” (2009) 2(1) Nasarawa State University L. J. 14 at 21-22;
A. I. Funmitola, “The Right to Participate in Governance under International Law (2009) 2(1) Nasarawa
State University L.J. 25; G. N. Okeke, “Reflections on International Human Rights Law and Application
to Nigeria” (2004) 4(1) Unzik L.J. 163; I. Okorony, “International Human Rights Protection: Agenda for
the 21st Century” (2000) 7 ABSU L.J. 55, and B. Bowing, “The ‘Droit Et Devoir D’Ingerence: A timely
New Remedy for Africa?” (1995) 7(1) AJICL 493. 21
See R. F. Oppong, op. cit at 2. 22
See U. O. Umozunike, Introduction to International Law (Ibadan: Spectrun Books Limited, 1993) 29 at
29-32 where the learned writer discuses, ‘monism’, ‘invert monism’, ‘Dualism’, ‘Transformation and
Specific Adoption” Theories and Harmonization Theories.
11
theories: monism and dualism.23
This segment of this paper examines these
rural theories in detail and illustrates their practical application with examples
from selected constitutions of African states.
Monism
According to monism, International Law and National Law constitute
aspects of a single universal system. The theory posits that all rules of law
ultimately regulate the behaviour of the individual, whether those rules
emanate from international or national law. Thus, the two systems are
interrelated part of a single structure. The monists, most of whom belong to
the natural law school, include Hugo Grotius, a Dutch scholar and diplomat
who is generally regarded as the father of the nationalist school of natural
law;24
Hans Kelsen; and Herschel Lauder Patch - all of whom have argued
that the international legal order is significant only as part of a universal legal
order which comprises the national legal order as well.25
The monist school
argues that not only do international legal rules and various national legal
23
Early treatises on these theories include J. L. Brierly, “International Law is England”, (1935) Law
Quartely Review 51:24; H. Kelson, General Theory of Law and State (Cambridge: Harvard University
Press, 1945); H. Kelson, Principles of International Law Second Edition (New York: How, Rime Hark &
Winston, 1966); L. J. Kung, “The Nature of Customary International Law” (1953) American Journal of
International Law 47 at 662; D. O’Connell, International Law Second Edition (London: Stevens & Sons,
1970) & J. G. Starke, “Monism and Dualism in the Theory of International Law” (1936) British Year Book
of International Law 16. For the more recent discussion of the theories, see I. Brownlie, Principles of
Public International Law Fourth Edition (Oxford: Clarendon Press, 1990); W. E. Butler, “Comparative
Approaches to International Law” (1985) Recueil Des Cours 190; A. Cassese, “Modern Constitutions and
International Law” (1985) Recueil Des Cours 192; J. Dugard, International Law: A South African
Perspective Third Edition (Kenwyn: Juta, 2006) and M. N. Shaw, International Law Fifth Edition
(Cambridge: Cambridge University Press, 2003). 24
J. Dugard, op. cit. at 53-58 25
L. J. Kunz, op. cit. at 662-669; See also H. Kelson, op. cit. and O. Thosa, National Law and International
Human Rights Law: Cases of Botswana, Namibia and Zimbabwe (Alders hot: Ashgate, 2001).
12
orders constitute a single universal system, but, in cases of conflict, national
legal orders take a subordinate position.26
Some constitutional arrangements in Africa reflect the monist approach
to the reception of international law. For instance, the constitutions of former
French colonies27
adhere to monism. But, for the purpose of this paper, our
attention will focus on three monist African countries namely - Namibia,
Senegal, and Democratic Republic of Congo. The constitutional provisions of
these countries vis-à-vis international law reception will now be discussed
seriatim.
Namibia
The status and role of both customary and conventional international
law in the municipal law of Namibia is regulated by the constitution. The
latter explicitly recognizes international law and its role and function in
Namibian municipal law. The relevant Article 114 of the constitution
explicitly and unequivocally declares the following:
Unless otherwise provided by this constitution or
Act of parliament, the general rules of public
international law and international agreements
binding upon Namibia under this constitution shall
form part of the law of Namibia.
26
See I. Brownlie, op. cit. at 33 and M. Shaw, op. cit. at 100-101. 27
See for example, Article 151 of the Constitution of Burkina Faso, 1991; Article 45 of the Constitution of
Cameroon, 1992; Article 147 of the Constitution of Mali, 1992; Article 147 of the Constitution of the
Republic of Benin; Article of 132 of the Constitution of the Central African Republic. All these
constitutional provisions are modeled on Article 55 of the French Constitution of 1958. In general, they
provide that treaties or agreements duly ratified or approved shall, upon their publication, have an
authority superior to that of domestic legislation, subject, for each government or treaty, to application by
the other party.
13
The effect of this provision is to accord both the general rules of public
international law and international agreement direct and automatic
application in Namibian municipal law, subject to two main qualifications.
Firstly, the general rules of international law and international
agreement may be excluded from applying directly in municipal law by the
Namibian constitution itself. Secondly, they may be excluded by an Act of
parliament. But for these two qualifications, the general rules of international
law and treaties are directly incorporated into Namibian municipal law. These
rules are directly enforceable by municipal institutions, particularly the
courts.
Thus, in Government of The Republic of Namibia & Anor v. Cultura
2000 & Anor,28
the Namibian High Court made the following remark
concerning Article 144 and particularly in respect of general rules of
International Human Rights Law.
It is manifest that the constitutional jurisprudence of
a free and independent Namibia is premised on the
values of a broad and Universalist Human Right
Culture which has began to emerge in substantial
areas of the world in recent times. Article 144 of the
constitution sought to give expression to the
intention of the constitution to make Namibia part
of the international community.
The above pronouncement represents a firm judicial recognition that
universal human rights norms and values are part of Namibia National Law.
28
(1994) (1) SA 407 (NM.SC)
14
By the same token, the significance of Article 144 of the Namibian
constitution, insofar as it makes international agreements part of the
Namibian Municipal Law, has receive positive confirmation and
reinforcement from Namibian courts. For instance, it was reinforced in
Kauesa v. Minister of Home Affairs & Others;29
while commenting on the
domestic status of the African Charter on Human and People’s Right
(ACHPR), 1981, the Supreme Court of Namibia, in that case, noted the
following:30
The Namibian Government has, as far as can be
formally established the African Charter in
accordance with Article 143 read with Article 63(2)
(d) of the Namibian constitution. The provisions of
the charter have therefore become binding on
Namibia in accordance with Article 143, as read
with Article 144 of the Namibian constitution.
In the other words, according to the court, Namibia’s ratification of the
ACHPR meant that the Charter was directly applicable in Namibia national
law. It directly created rights and duties for individuals in municipal law. It
could therefore be given domestic effect by Namibian court.31
Similarly, in Government of The Republic of Namibia & Another v.
Cultura 2000 & Another, the Namibian Supreme Court emphasized that;32
Article 144 of the constitution sought to give
expression to the intention of the constitution to
29
(1995) (1) SA 51 (NM.SC) 30
Ibid. at 86. 31
Although the court opined that the ACHPR formed part of Namibian municipal law, it is significant to
emphasize that the Namibian parliament has yet to pass legislation making the ACHR part of Namibian
National Law. 32
(1994) (1) SA 407 (NM.SC) p. 412.
15
make Namibia part of the international community
by provide that international agreements binding
upon… shall be part of the law of Namibia.
Furthermore, in S. v. Mushwena & Other,33
involving the
apprehension, abduction and deportation of 13 respondents from Botswanian
to Namibia where they were charged, inter alia, with treason and murder
allegedly committed in Namibia, reference was made to International
Covenant on Civil and Political Rights, 1951; the Convention Relating to the
Status of Refugees, 1951; and the 1967 Protocol Relating to the status of
Refugees, and to Article 144 of the Namibian Constitution. The Court stated
that:
As a matter of fact, as I have shown … the
International Convention on Civil and Political
Rights and the UN Covenant and Protocol relating
to the Status of Refugees have become part of
public international law and by virtue of Art. 144
have become part of the law of Namibia.
According to the court, these instruments had not only “become part of
Namibian domestic law by virtue of the Namibia constitution”, but some of
their basic principles have been incorporated into the Namibian laws.
Senegal
Senegal is a monist country. This means that once a treaty is ratified by
Senegal and published at the domestic level, it automatically becomes part of
the law of the land and can be invoked as a cause of action before domestic
33
SAFLII 2004 (SC).
16
courts. Thus, under Article 98 of the Senegalese constitution, “treaties or
agreements duly ratified shall upon their publication have an authority
superior to that of the laws, subject for each treaty and agreement, to its
application by the other party”.
A question may arise as to whether or not “the laws” referred to in the
above provision include the Senegalese constitution itself. Article 97 of the
constitution clears this equivoque by providing that where an international
agreement has a provision contrary to the constitution. The authorization of
ratification or approval may only intervene after the amendment of the
constitution.34
Despite this normative precedence which international law enjoys in
the municipal legal order of Senegal, the most “direct incorporation” does not
seem to be unequivocal in judicial practice in Senegal. The best example is
the Habre Case,35
where the convention was ratified and published but was
refused applicability.
Democratic Republic of Congo
The Democratic Republic of Congo has a monistic legal regime. Thus,
international agreements and treaties to which it adhered or ratified have
greater command than the domestic laws. In effect, Article 215 of the
constitution of the 18th February 2006 stipulates that:
34
In any case, Senegal has accepted the primacy of International Law over National Law. See Para. 10 of the
Human Rights Committee’s Concluding Observations CCPR/C/79/Add. 82 of 19 November (1997) on
Senegal’s Report (accessed 27 September, 2011). 35
Suleymane Guengueng and others v. Hissene Habre (2002) AHRCR 183 (SECC 2001).
17
All the international agreements and conventions
which have been lawfully concluded have on
publication, a higher authority than the law
governing each agreement or convention without
prejudice to its application by the other party.
The above constitutional provision was reinforced by the decision in
Military Tribunal of Ituri Military Prosecutor v. Bongi Masa.36
In that case,
the question was whether a Democratic Republic of Congo Court could base
a domestic prosecution of a war crimes suspect on the 1998 Rome Statute of
the International Criminal Court when domestic law contained a lacuna in
that it did not provide for punishment of war crimes. The tribunal applied the
provisions of the Rome Statute on sinful killing and pillaging to fill the
lacuna in the military code, judging that it was the legislature’s intention to
provide for the punishment of war crimes by military courts at the national
level, as evidenced by the Democratic Republic of Congo’s ratification of the
Rome Statute. It was by virtue of the monist approach of the 2006 Congolese
Constitution, which gives primacy to the treaties and agreement ratified by
the Democratic Republic of Congo, that the tribunal directly applied the
provision of the Rome statute.
All in all, the above constitutional provision gives the force of law to
International Law and determines its status within the national hierarchy of
laws. Under the constitutional provisions highlighted above, as soon as an
international treaty or agreement is ratified or approved it has precedence
36
Criminal trial judgment and accompanying civil action for damages, 26 March, 2006.
18
over national laws, subject in some cases to implementation by the other
parties to the treaty or agreement. The international laws become applicable
as law in the national legal system as soon as it is ratified. It may be invoked
directly in natural courts.
Dualism
Dualism - or rather, the doctrine of transformation - for its part
perceives international law and national law as two distinct and independent
legal orders, each having an intrinsically and structurally distinct character.37
The two legal orders are separate and self-contained spheres of legal action,
and theoretically there should be no point of conflict between them. Since
they are separate legal systems, international law would as such not form part
of the municipal law of the state.38
Dualism argues that the two legal systems
are distinct in nature.
First, the two legal systems are different in the particular relations that
they govern: state law deals with the social relations between individuals, and
international law regulates the social relations between states, who alone are
subject to it.39
In the second, sense, Triepel argues and is widely supported by
37
See generally, Maluwa, T.; “The Role of International Law in the Protection of Human Rights under
Malawian Constitution” (1996) African Year Book of International Law, p. 53; Morgenstern, F., “Judicial
Practice and Supremacy of International Law” (1950); British Year Book of International Law, p. 27:42. 38
This view has been propounded by positivist theorists such as Hegel, Anzilotti and Triepel, who have
invoked a consensual approach to international law to argue that the two legal systems are distinct in
nature. 39
Lindholt has noted that the classical dualist theory is based on the perception that two types of law
regulate different subjects, where national law operates with individual subjects while international has the
states as its subject”; See Lindholt, L.; Questioning the University of Human Rights: The African Charter
on Human and People’ Rights in Botswana, Malawi and Mozambique, Dartmouth: Ashgate, (1997) pp.
84-85.
19
other dualists, that the two systems have different juridical origins. The
source of municipal law is the will of the state itself, while the source of
international law is the common will of states.40
Thirdly, according to
Anzillotti, the two legal systems are differentiated by the fundamental
principles by which each is conditioned.41
Municipal law is conditioned by the norm that legislation is to be
obeyed, whereas international law is conditioned by the pacta sunt servanda
principle.42
The latter principle commands that agreements between states are
to be respected. This principle is at the heart of modern international law,
especially treaty law, and underlies the basis for performance of treaty
obligations. Because of this consensual factor, Anzillotti concludes that the
two systems are so distinct that no possible conflict is possible. In case of any
conflict, national law prevails; this is predicated on state sovereignty, which
gives the right to the state to determine which rules of international law are to
have effect in a municipal sphere.43
Current constitutional arrangements in Africa also reflect the dualist
approach to the application of international law in municipal law. The
constitution of the former British colonies44
adhere to dualism; international
40
See J. G. Starke, and I. A. Shearer, Starkes International Law (London: Butter Worth’s, 1994) at 64. 41
Ibid. 42
Ibid. 43
Ibid. 44
See for example, Article 75 of the Constitution of the Republic of Ghana 1979. Article 231 of the
Constitution of South Africa, 1996; Article 211 of the Constitution of the Republic of Malawi, 1995;
Article 123 of the Constitution of the Federal Republic of Uganda; Article 12 of the Constitution of the
Federal Republic of Nigeria 1999; Article 111(B) of the Constitution of the Republic of Zimbabwe, 1993;
Article 238(4) of the Constitution of the Kingdom of Swaziland.
20
law does not become part of or have the force of law in national legal system
unless it has been expressly given that force by a national measure, usually a
positive legislative Act or Act of parliament.
However, for the purpose of this paper, we will concentrate on three
dualist constitutions of African Countries, namely: Nigeria, Malawi and
Zimbabwe. The dualist constitutional provision of these countries will now
be examined seriatim.
Nigeria
Nigeria as one of the common law countries necessarily adopts an
approach that is reflective of the common law tradition. Accordingly, section
12(1) of the 1999 constitution of the Federal Republic of Nigeria states
authoritatively that:
No treaty between the federation and any other
country shall have the force of law except to the
extent to which any such treaty has been enacted
into law by the national Assembly.
In interpreting the above provision of the constitution, the Supreme
Court of Nigeria has observed in the case of General Sani Abacha and Others
v. Chief Gani Fawehinmi45
that an international treaty entered into by one
government of Nigeria does not become binding until enacted into law by the
National Assembly and before its enactment into law by the National
45
(2000) 77 LRCN 1255. In that case the court cited with approval the case of Higgs & Anor v. Minister of
National Security & Ors, the Times of December 23, 1999; where the Privy Council opined that Treaties
formed no part of the domestic law unless enacted by the legislature.
21
Assembly. It has no such force of law as to make its provision justifiable in
our courts. According to Ejiwunmi, JSC in that case:
It is therefore manifest that no matter how
beneficial to the country or the citizenry, an
international treaty to which Nigeria has become a
signatory may be it remains unenforceable, if it is
not enacted into the law of the country by the
National Assembly.46
The above analysis clearly illustrates the dualist position of Nigeria
vis-à-vis the application of international law in a domestic legal order.
Malawi
On the authority of Article 211(1) of the Constitution of the Republic
of Malawi, 1995; Malawi is a dualist country. By that constitutional
provision, “any international agreement ratified by an Act of parliament shall
form part of the law of the Republic if so provided for in the Act of
parliament ratifying the agreement.” The tenor of this provision has been re-
echoed by the courts of Malawi.
For instance, in the case of Chafukzya Chichana v. The Republic,47
counsel for the applicant had argued; inter-alia that the applicant’s rights
were also provided under the African Charter to which Malawi was a party.
The court, however, rejected this contention based on the fact that no specific
46
Abach v. Fawehinmi supra at 356-357. 47
(1996) ILRC 1. The case was discussed by T. Malawa, “The Role of International Law in the Protection of
Human Rights under the Malawi Constitute” (1953) 3 ATBLL 65-69.
22
legislation had been passed to incorporate the Charter into domestic law.48
The opinion of Banda C. J., in this regard is illuminating.
This Charter, in our view, must be placed on a
different plane from the UN Universal Declaration
of Human Rights. Whereas the latter is part of the
law of Malawi, the African charter is not. Malawi
may well be a signatory to the charter but until
Malawi takes legislative measures to adopt it, the
Charter is not part of the municipal law of Malawi
and we doubt whether in the absence of any local
statute incorporating its provisions the charter
would be enforceable in our courts.49
This conclusion is in tandem with the dualist perspective to the
application of International Law in Municipal Courts.
Zimbabwe
Another illustration of the dualist theory on the application of
international law to municipal law is that provided by section 111(B) of the
Constitution of Zimbabwe.50
According to that section of the Zimbabwe’s
Constitution, “an international treaty is, subject to approval by parliament and
does not form part of the law of Zimbabwe unless it has been incorporated
into the law by or under an Act of parliament.”
The dictum of Judge Gowora in the Zimbabwe case of Richard
Thomas Etheredge v. The Minister of State for National Security Responsible
48
On the current potential effects of the African Charter on Human and Peoples Right on Malawi Law, see
L. Lindholt, op. cit. at Ch. 6 and 7. 49
The 1996 constitution, then in force provided in section 2(1) (III) that the government and the people of
Malawi shall continue to recognize the sanctity of the personal liberties enshrined in the United Nations.
Universal Declaration of Human Rights…” 50
As amended by the Constitution of Zimbabwe Amendment Act, (No. 12), 1993.
23
For Lands, Land Reform And Resettlement And Another,51
accommodates the
dualist orientation of the constitution of Zimbabwe. In that case the judge
stated categorically that:
The supreme law in this jurisdiction is our
constitution and it has not made provisions for
these courts to be subject to the tribunal.
The above dictum which suggests that international law and municipal
law is each supreme in its sphere of operation shows the dualist orientation of
Zimbabwe.
Conclusion
The above theories need to be approached with caution. This is
because, in practical terms, they may not purely determine the relationship
between national and international law. This is posited on a number of
reasons. Firstly, the internal application of International Law in general and
treaties in particular is always conditioned by a rule of municipal law. The
basic principle in most legal systems is that the internal application of treaties
is governed by domestic constitutional law.52
Second is the practical approach of national courts. Even in monist
countries, courts sometimes fail to effectuate treaties which are binding under
international law; an example of this is the non-self-executing treaties in
United State law. Conversely, in dualist systems, the court may sometimes
51
HC 3295/08 (Unreported) 52
See J. Dugard, “International Human Rights Norms in Domestic Courts: Can South Africa Learn from
Britain and the United States?” in E. Kahn, (Ed.). Fiat Justitia: Essays in Memory of Oliver Deneys
Schriener (Cape Town: Juta, 1983) at 221, 223-224.
24
give limited effect even to unincorporated treaties. For example, British
courts’ use of the European Convention on Human Rights (ECHR) before its
incorporation into United Kingdom (UK) law. In countries like the UK,
courts rely on the principle that legislation should, wherever possible, be so
interpreted as not to conflict with the international obligations of the state.53
In the final analysis, the theories are relevant only in the specific
context of customary, but not conventional, international law. The real
concern, it is submitted, is how international standards can be infused or,
rather, incorporated into state law to reinforce the effectiveness of the
national legal system. Oftentimes, national legal rules are not well-defined
and are sometimes inadequate in respect of addressing practical legal
questions. But this is not to say the theories are insignificant: indeed, on the
contrary, they are important. They continue to illuminate the interaction
between international law and municipal law. Most importantly, they will
increasingly have some impact on efforts to find practical solutions on the
role of international law in the municipal legal sphere.
53
J. G. Collier, “Is International Law Really Part of the Law of England?” (1989) International Law and
Comparative Law Quarterly at 924-925; H. J. Jackson, “Status of Treaties in Domestic Legal Systems: A
Policy Analysis” (1992) American Journal of International Law 310.