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.

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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.

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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”.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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).

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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.

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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)

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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.

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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).

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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).

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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.

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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.

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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.

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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.

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 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.

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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.

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 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.

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 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.

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