THE UNIVERSITY OF MALAWI

SCHOOL OF LAW, ECONOMICS AND GOVERNMENT

DEPARTMENT OF PUBLIC LAW AND CLINICAL LEGAL STUDIES

MODULE TITLE
Public International Law

MODULE CODE
LLB 215

STUDENTS’ REG NO’S

LAW/ME/37/23
LAW/ME/35/23
LAW/ME/15/20

TO
Dr. E Chilemba
SN Assessment Malawi Constitution sec 211(1):
Theme
(1) Any international agreement
entered into after the commencement
of this Constitution shall form part of
the law of the Republic if so provided
by an Act of Parliament.
1 Discussion of your This subsection tackles treaty law binding
understanding of Malawi after the 1995 constitution. It
the implication of reflects dualism in the context of Malawi.
the sub-section Dualism is a legal theory that considers
for/on/to the domestic law and international law as
application of PIL separate legal systems(brownlie). At the
in Malawi heart of this theory is the concept of
transformation, which requires that
before international law is applied in
national/ domestic law it has to be
expressly domesticated to form part of
the domestic law. In this case, the
subsection entails that for an
international agreement to become part
of domestic law, it is required that it
should be implemented through an act of
parliament to become part of law. E.g.
the CCPJA section 4 (c) of the third
schedule was an incorporation of the
conventions of the rights of the child.
Malawi Constitution sec 211(2):
(2) Binding international
agreements entered into before the
commencement of this Constitution
shall continue to bind the Republic
unless otherwise provided by an Act
of Parliament.
This subsection tackles treaty law
binding Malawi before the 1995
constitution. It shows a form of
monism in the context of Malawi.
Monism is a legal theory that considers
international law and domestic law as a
single unified system(brownlie).
Monism theory reflects automatic
domestication, this means that the
international agreements become part
of municipal law without the need for
domestic legislation or an act of
parliament to incorporate it. For
instance, judicial interpretations have
indicated that treaty law binding on
Malawi before 1995 automatically form
part of municipal law ( kalinda v Limbe
leaf). However, the provision allows for
parliamentary intervention or
termination if parliament decides
otherwise or if the agreement lapses.
Malawi Constitution sec 211(3):
(3) Customary international law,
unless inconsistent with this
Constitution or an Act of
Parliament, shall form part of the
law of the Republic.
customary international law is at the
heart of this subsection. It shows
that customary international
law( herein after referred to as CIL)
forms part of municipal law in
Malawi. The doctrine of
incorporation is generally followed in
respect to CIL according to this Sub
section. The approach is largely that
CIL will automatically become part of
law in Malawi in the absence of any
domestic law to the contrary. For
instance, in Gondwe v Gondwe it was
highlighted that Public International
Law will be thrown out of the
window when interpretating local
legal documents, this is when it is
inconsistent with any act of
parliament or its provisions.
2 Discussion of The Constitution allows for the direct
Application application of international law as a
component of domestic law under
Section 211(1) by stating that international
law becomes part of municipal law when
expressly incorporated by an act of
parliament for all post 1995 ratified
treaties. This section is a typical dualist
clause that requires domestication of a
treaty before it can be considered to form
part of domestic law in Malawi. Thus,
international law only applies once it is
transformed into municipal law.
Therefore, the direct opposite of the
above is the non-applicability of
international law per section 211(1). This
entails that a treaty even though it has
been ratified to it will not be applicable to
Malawi’s domestic law if it hasn’t been
domesticated by an act of parliament .
The 1995 constitution of the republic of
Malawi provides for interpretation under
section 11. Section 11(2)(C) In interpreting
the provisions of this Constitution states
that a court of law shall where applicable,
have regard to current norms of public
international law and comparable foreign
case law. The language of the
Constitution gives discretion to the courts
on whether or not to apply international
law under these provisions; but, at the
same time, where international law is
applicable, the Constitution makes the
consideration thereof peremptory
(Redson E. kapindu). This means that
courts can still have regards to
Section 211(2) gives a clear direct Particularly customary international
applicability of international law in law becomes part of municipal law
Malawi for all ratified treaties entered unless inconsistent with
into before the 1995 constitution. This constitutional or local statute. It
direct application is per monism. This applies automatically. This is the
means that all international direct applicability of customary
agreements entered into before the international law into domestic law.
commencement of the current This shows a monist approach.
constitution continue to bind Malawi.
The non applicability of international When interpretating the statutes
law in this case come in when an act of courts will only apply customary
parliament provides otherwise. international law when it is consistent
with domestic law.
Per section 11(c) of the constitution of
the republic when the courts are
looking at agreements that have are
considered binding per section 211(2),
they have to consider to current
norms of public international law and
comparable foreign case law, this
means that when interpreting these
constitution provisions, it implies that
treaties recognized by 211(2) should be
interpreted in a manner that is
consistent with the norms of the
international community.
 international law even when it has just
been ratified but not domesticated yet,
therefore been an exception to the
direction application of international law
under section 211(1).
3 i. Monism Monism is a legal theory that considers
international law and domestic law as a
single unified system(brownlie).This
subsection expressly indicates that a
treaty will form part of Malawian law if
and only if it is domesticated into
Malawian law through an act of
parliament. These extremely shows that
there is need for the international law to
be transformed into Malawian law which
is dualism. As such there is no monism in
this subsection.
4 ii. Dualism Dualism is a legal theory that considers
domestic law and international law as
separate legal systems(brownlie). The
fundamental idea of this theory is
transformation, which states that
international law must be specifically
domesticated in order to become a part of
national or domestic law before it may be
implemented. For example, the child care
protection justice act is a domestication of
the CRC and African children’s charter.
Subsection 2 demonstrates an aspect
of monism in that all treaty law pre
1995 constitution will continue to be
binding on Malawian law. For instance,
it was highlighted in the case of Kalinda
-v- Limbe leaf tobacco limited, where
the high court held that Int Labour
Organization Convention is applicable
in labour matters even though it was
ratified before the 1995 constitution
and the courts referred to s.211 of the
constitution.
Subsection 2 on the face of it and
through court interpretation is not
dualist but it is monist. As discussed
per section 211(1) as to the nature of
dualism, Subsection 2 of the said
section 211 does not conform to such
dualist nature but rather monism.
Subsection 3 reflects pure monism
because all customary international
law is directly applicable in Malawi
except when they inconsistent with
the constitution or an act of
parliament. In In Re Chifundo James,
the Malawi Supreme Court of Appeal
It held that: In all cases therefore the
courts will have to look at our
Constitution and our statutes and see
if the international agreement in
question or the customary
international law in question is
consistent or in harmony with the law
of the land and the Constitution.
Therefore, there is no need for
express domestication but rather it
applies automatically.
Subsection 3 has no aspect of
dualism as it involves automatic
application of customary
international law in Malawi. This is
pure monist as discussed above.
Customary international law
applies automatically, hence no
need for domestication for it to
confine to dualism.
5 iii. Incorporation The doctrine is based on the principle
that, in the absence of Conflicting
domestic legislation, international law
should automatically become part of a
state law without need for a specific
Act to be passed. This subsection does
not portray any of these aspects
6 iv. Transformation This subsection is a typical
demonstration of transformation since
any treaty after 1995 constitution
cannot be part of Malawian law until it
is transformed or implemented by an
Act of Parliament. The dualism aspect
of the section follows transformation.
A clear example is the “Newly passed
law on Disability, which is a
domestication of the CRPD
(Convention on the Rights of Persons
with Disabilities).
7 v. Consistency/ its application is consistent so long as
inconsistency the ratified treaty is transformed in
Malawi it forms part of the law.
8 vi. Harmonisation this section would demand supremacy it would demand limited application limited application of monism, and
of the domestic law where it is in of Monism.
conflict with international law
9 Final Critical the application of treaty law in Malawi
The treaties binding in Malawi incorporation doctrine is most
before 1995 will still bind Malawi. dominant doctrine in relation to
This shows that in respect to the application of Customary
1995 constitution on applicability of international law, thus the
international law in Malawi, those subsection reflects typical
laws will still be binding thus incorporation. Due to its monist
showing automatic application to approach it clearly abides to the
Malawi without need for aspect of incorporation when
domestication. customary international law takes
effect in Malawi.
There is no transformation as it Here, there is no transformation
automatically binds Malawi without at all since the law automatically
need for transformation. Monist becomes part of Malawian law.
theory follow incorporation rather Same as what was stated under
than transformation; hence this transformation on section 211(2)
subsection does not follow on transformation.
transformation.
this is applicable only when an Act this is only applicable only when
of parliament does not say other, consistent with the constitution,
where an Act of Parliament otherwise it will not be applicable
stipulates otherwise, it will not be
applicable, hence raising an
inconsistent
where it is in conflict with
domestic laws, domestic law
should prevail
there is controversy with this For customary international law, it
 Thoughts is straightforward, it must be
transformed before being part of the
law. However, this is not true for self-
executing treaties that automatically
applies upon ratification. This leads to
the conclusion that this subsection is
dualist on to the extent of other
treaties but not self-executing treaties
which apply a monist approach.
10 Authorities  The constitution of the
Republic of Law
 the CCPJA section 4 (c)
 M. L. A Brownlie. Brownlie’s
Principles of Public International
law; Oxford University Press
 The Relevance of International
Law In Judicial Decision-
Making in Malawi; Dr Redson
Kapindu, 2014
 International Law and
subsection with regards to dualism clear cut that it takes a monist
and monism. For treaties that were approach. There is automatic
just ratified pre the 1995 domestication of customary
constitution the position is clear cut international law. But a court will
that it is obvious monism but what ignore customary international law
happens to those that were where it is inconsistent with the
domesticated then. Further there constitution. This to an extent shows
are criticisms to this approach, the domestic law supremacy and
approach adopted in Kalinda v avoidance of impositions of laws that
the state does not adhere to.
Limbe Leaf Tobacco Ltd and Malawi
Telecommunications Ltd v Makande
& Omar suggests that Malawi was
monist before 1994, which is clearly
not correct. It suggests that once a
treaty became binding on Malawi, it
became part of Malawian law. The
position obtaining must, in my
considered view, have been the
common law position which was
dualist (Redson E kapindu). But
never the less, when the Malawian
courts are interpreting this
subsection, they clearly depict
monist in nature.
 The constitution of the  The constitution of the
Republic of Law Republic of Law
 Kalinda v Limbe Leaf  Gondwe v Attorney General
Tobacco Ltd [1996] MLR 492 (HC).
 Malawi Telecommunications  In Re Adoption of Chifundo
James (a female infant) MSCA
Ltd v Makande & Omar,
Adoption Appeal No. 28 of
MSCA # 2 OF 2006 2009.
 M. L. A Brownlie. Brownlie’s
 The Relevance of
Principles of Public
International Law In
International law; Oxford
Judicial Decision-Making in
 International Relations; University Press Malawi; Dr Redson
Malawian Perspectives;  The Relevance of Kapindu, 2014
Presentation by Dr. Enock International Law In Judicial  International Law and
Chilemba 2018 Decision-Making in Malawi; International Relations;
Dr Redson Kapindu, 2014 Malawian Perspectives;
 International Law and Presentation by Dr. Enock
International Relations; Chilemba 2018
Malawian Perspectives;
Presentation by Dr. Enock
Chilemba 2018
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