International Law and Politics;

An African Perspective

Akin Oyebode, LL.M. (Kiev), LL.M. (Harvard),

D.jur. (York, Can.)
Professor of International Law and
Vice-Chancellor,
University of Ado-Ekiti, Nigeria.
 Akin Oyebode 2003

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Oyebode, Akin ' C.I.R
International law and politics: an African perspective - Lagos:
Solabay Pubs.. 2003
KC
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.09
i. International law

I. Title

Designed and produced by B^aoay Publications,Lagos, Nigeria.

 Contents

Page
Preface xiii
Tabie of Cases xu
List of Abbreviations xix

Section 1
General International Law 1

Chapters
1. International Law and the African States 3
Introduction o
O
Law in International Society 4
From Objects to Subjects 5
State Succession and Post- Independence Africa
6
The OAU and International Law 9
African States and the Progressive Development
and Codification of International Law 11
Treaties > 13
Conclusion 15

2. The Legal Regime of African Frontiers

Re-Considered 16
Introduction 16
Some Problems of Definition 17 .
The Making of African Boundaries 18
Boundaries in Pre- Colonial Africa 19
Africas Colonial Boundaries 20
Boundary Problems in Colonial Africa < 23
The Nature of African Frontiers . - 26 .
Summary ' 29

3. History of the Law of the Sea (1500-1960) 31
introduction 31
Unidimensional Law of the Sea 32
Pluridimensional Law of the Sea 37
 A
J.
j

International Law from a

Practical Perspective*
Introduction
nternational law has remained somewhat esoteric despite its

I rising
profile in the popular consciousness as a result of its invocation
in
the media in connection with international conflicts, refugee
problems,
transboundary movement of toxic and hazardous substances, human
rights violations, illicit arms trade, drug trafficking, sex tourism and
numerous other phenomena that characterise contemporary
international
life. As the body of rules which regulate the conduct of members of
the
international community, international law inevitably has a role to
play
in shaping the human destiny.
Paradoxically, it is among the legal profession,
lawyers and judges
alike, that knowledge of and respect for international
law are probably
the lowest. To this large army of cynics and skeptics,
international law is
to be viewed with askance or even suspicion on
account of its political
nature and alleged unenforceability. In their view,
international law betrays
' more bark than bite and is, therefore, not worthy of
the time or attention
of the legal practitioner.
It is with a view to correcting this wrong
impression and in order to
remove all the lingering doubts on the normative
character of for Debo Akandet international
* Originally written for a festschrift
law that this contribution has been conceived.
Pursuant to Function of Law
1. Cf. e.g., C. Pany, "The this, it Communityis
in the International
intended to discuss aspects of international law
in Manual of Public International Law 1-14 (M. Sorensen, ed., 1968).
from a practical point
of view so sis to render the subject less arcane and
elicit greater
appreciation of its scope and relevance.
international

3
Law and Politics: An African
4
Perspective

the extent to which it can be considered as

constituting a source of positive law.
Accordingly, whether or not international law is
law would depend on the accepted definition of law
within a legal order2. However, this becomes not
infrequently a matter of legal ideology conditioned
by the naturalist - positivist dichotomy. Besides,
since law does not exist or operate in vacuo, a proper
characterisation of international law would proceed
from an awareness of the intrinsic nature of the
international legal order as a horizontal system of
sovereign and equal entities in contradistinction to
the domestic legal order which is a vertical one of
superior and subordinates.
To the extent, therefore, that international law is
the body or norms which regulate the affairs of
members of the international community inter se, to
that extent is it valid to consider it basically
consensual. What this implies, in essence, is that
while each and every State enjoys . sovereign rights
especially with regard to matters which are
inherently domestic, they are, nevertheless, bound
to observe rules of international intercourse the
creation of which they all partake of. The
international norm-creation process subsists
through the relinquishing of some of the
sovereignty of States either by accepting rules of
international custom or treaties, as the case may be.
This is what is usually known as the auto-limitation
of sovereignty.
Thus, once a State agrees to be bound by either
a prior existing or 'new rule of international law, it
becomes mandatory for such State to bring its
domestic law at par with international law in order to
avoid the risk of individual or collective sanctions
prescribed by international law against delinquent
Statfes.
Admittedly there is a record of instances where
some States with powerful friends have violated
international law without deleterious consequences
2. For more ,on this, see G. Williams, International Law and the Controuersy
due toLaw,the exercise
71 (1945). of the veto power against
Surrounding the Word, 'Law', 22 B.Y.I.L. 146 (1945); id., Language and the
61 L.Q.R.
adoption of sanctions by the international
community or they escaped the full weight of
sanctions imposed on them through the duplicity or
connivance of their SBSSffisiSWSSi
friends. Yet, such examples of
the weakness of international law are insufficient wsrww
to
detract from the legality of the sanction framework
International Lota from a Practical Perspective 44
and conviction even at the domestic sphere. For,
just as selective enforcement and the exercise of the
prerogative of mercy would by no stretch of the
imagination, be considered tantamount to the
invalidity or absence of criminal law. non-
enforcement or weakness of international law
generally should not take anything from the
normative character of international law.
International law is indeed a relatively weak system
of law but the solution is not to ipso facto discard it
and consider it worthless. Rather, ways and means
ought to be sought to make it more effective since
humankind is yet to devise an alternative framework
for the maintenance of international peace and
security.
Interestingly, the vast majority of members of the
international community take their international
obligations seriously. Diplomats, lawyers and state
officials seised of international matters endeavour to
perform their duties on the basis of^international
law as law and not as mere rules of courtesy or
morality. Furthermore, violations of international law
although widely reported when they occur are.few
and far between. In technical, non-political areas
such as international post md telecommunications,
aviation, weather, health and scientific cooperation,
unflinching respect for rules is clearly discernible in
the behaviour of states. And it needs be pointed out
that even at the crossing of swords international law
does not remain silent. Whether the disagreement
arises on account of terrorism, territorial claims,
takeover of property of nationals or whatever, States
usually resort to an adjudicative law. The current
dispute between Nigeria and Cameroon over the
Bakassi Peninsula is a case in point. If arid when
International Court of Justice delivers its judgment
the parties would be left with no choice but to abide
by the decision,
If international law was synonymous with positive
morality, as some critics would have us believe, it
would have
3. C/. e.g., beenandmuch
D. Beyleveld more
R. Brownsword, difficult
Law as to press
a Moral Judgement, passim
claims(19o6);
based L,C. on it Law
Green, before domestic
and Morality courts.
in a Changing Society, As
20 U.isToronto
well
known, even
L.J. 482 (1970).though law and morals are both
normative categories, they evince inherently
different characteristics both' in terms of evaluation
of human conduct and the nature of sanctions
attached to their violation3. Of course, international
law invokes moral precepts like good faith, good
neighbourliness, propriety and fairness in assessing
International Law and Politics: An African Perspective 45

confined to textbooks.
The Interplay of International Law and Domestic Law
Nevertheless, it-is not enough to declare that
international Saw is law without getting to grips with
how it becomes a source of law at the domestic
plane. Besides, it is of paramount importance to
understand the inter-relationship of international
law and the internal or domestic laws of States. How
and in what circumstances can international law be
applied in local courts? Can international tribunals
apply the domestic law of particular States?
The answers, to these questions rest on ones
attitude to the relationship between international
law and domestic law, an issue 'usually approached-
from two broad perspectives, namely, monism and
dualism. To monists, international law and domestic
law constitute part and parcel of a unified legal
systems or continuum, thereby rendering the
individual iiable to norms of both4. On the other
hand, dualists conceive of international law as two
separate and distinct legal orders, 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 5. However, it
should be noted that attempts have been made by
some scholars to reconcile international law and
domestic law through notions such as
harmonisation and coordination in a bid to escape
the straight-jacket of the controversy between both
perspectives6.
On a practical note, however, whenever
international law is invoked before a domestic court,
its applicability to the matter in dispute would very
often Theory
depend onthe the position (19451; of international law
4. Tha most notable exponent of monism was Hans Kelsen. See his General
of Law and State 363-SO The Pure Theory of Law 320-47
within the
(1970) hierarchy of sources*of the states
5. The dualist position was first propounded by the German jurist, Heinrich legal
system. Inin fact,
Triepei 1899. Forthe constitutions
more on ofInternational
it, see L. Oppenheim, many Law, States
Vol.
provide a pointer
1, 37 (8th ed.
on the relationship between
international law and domestic law34-35 8(1990).
. Thus, spme
6. . 1955).
See e.g., G. Fiizmaurice, Hague Recueil des Cours 768-94 (1957); !.
Brownlie, Principles of Public International Law
States
7. Seeadopt the practice
e.g., Grundgesatz Ad. 25 (1949,of amend.
primacy1961), of international
.(Germany); Italian
law8.over domestic law, envisaging the possioility of
Const. Art. 10 (1947); Austrian Const. Art. 9 (1920); French Const. Art. 55

direct application of international law within the

(1958).
This is true of Germany, japan, the Netherlands .and Mexico.

domestic sphere 3.
However, it is the practice of many States
especially in the English-
 --------- I m a utsu

International

5
Laui from a Practical
4
Perspective

1
speaking world to bifurcate international law into
custom and treaties with different rules regulating
their application domestically. Thus, in England, under
the so-called Biackstor.ian doctrine, customary law is
deemed to have been incorporated into the law of
the land and any changes brought about with respect
to it would automatically be reflected in English law
subject to consistency with statutes and within the
general ambit of judicial precedents'. Or. the other
hand, treaties are not applied ex phop.no vigors. Unless
and only to the extent that enabling legislation had
been enacted by Parliament would treaties be
enforced by English courts. Since treaty-making falls
within the prerogative of the Crown, application of a
treaty domestically without parliamentary approval
would have been tantamount to a violation of the
established relationship between the Crown and
Parliament. None the less, it should be emphasised
that not every treaty requires consent of Parliament
for its realisation. Transformation is necessary only
where and when the treaty in question would affect
private rights cr liabilities, results in a charge on public
funds or necessitate modification of the common law
or an existing statute9 10.
In the United States, the attitude of the courts in
respect of customary international law generally
follows the British approach11. Furthermore, it should
be noted that US courts reserve the right to give
effect to a later statute as against a rule of customary
9.[19051
See 2K.B. 396;
international ine.g.. consonance West Rand Centralwith the maxim,
Gold Mining Co. u. The Lex King,
legiA.C. 160. But T
[1939]
posterior derogat priori l2. However, the practice
Chur.g Chi Cheung u. The

with
529 regard
King,

at
Trading
554; [1977] Q.B.
Corp. to treaties
u. Central Bankisof markedly
of the British in consequence of relevant
Nigeria, different than that
cf.

provisions
rendtex

of
[Owners,)
10.
[1977] u.
theKong)US
Cf. Brownlie,
Ltd.,
Shipping
constitution
A.C. 373
supra
at 402.
note 6, at 48, See 13
also Theand
Wallem
The
Parlementthe
Beige
Philippine
practice
(1879), 4RD.
Admiral
129; of
(Hong

distinguishing between self-executing and

International Tin Council Appeals, [1988], 3 All E.R. 257; 3. W.L.R. 969.
"non-self-
executing treaties 1.* (1899),
as well as the164widespread resort
11. See e.g., The Paquette Habana 175 U.S. 677 at 700; U.S. v. Melekh' (1960),
190 F Supp. 67. But cf. Pauling u. McElroy (1958), F Supp. 390.
to so-called
12. See The Over Theexecutive
Top (3J925), 4 F agreements 1S. Thus,
(2d.) 842; Tag u. Rogers depending
(1959), 267 R (2d.) 664.
on the nature of the treaty, it may be implemented
either through an enabling statute or u. uon Finck (1976), 534
13. See Arts. II (2), VI (2).
14. See e.g., Foster u. NeiIson (1829), 2 Pet. 253 at 314, Dreyfus

15..
E.M.ForByrd,
moreJr.,
or. this, see
F (2d.) 24.

(1960).
the United States, passim
Treaties and Executive Agreements in
international Law and Politics: An African Perspective 47
directly without need for such legislation or by
administrative actioniD.
As far as Nigeria is concerned, it is a matter or
regret that none of the nations constitutions felt the
need to embody' clear-cut provisions on what should
be the relationship between international law and
Nigerian law. Rather, the matter had usually been
approached in an indirect manner, that is, by way of
treaty implementation16 17 18. Accordingly, while
Nigeria can be deemed as having adopted the
Blackstonian doctrine of incorporation of customary
international law as applies in England, treaties
require transformation into the domestic law before
they can be enforced in the courts13.
What the statement above means in practiced
terms is that it hasdo be established that a rule of
customary or conventional (treaty) international law
was binding on Nigeria before the courts can take
judicial notice of same. Accordingly, where and when
a point of international law is raised in judicial
proceedings, evidence.has to be adduced on its
relevancy. If, for example, the point in issue concerns
the diplomatic status of one of the parties, a
ministers certificate attesting to such would be
considered final and conclusive on that point19.
With regard to the issue of. application of
domestic law by international tribunals, the first thing
to bear in mind is that domestic law is considered
more or less a question of fact at the international
level. More importantly, the laws of a State provide
useful evidence regarding the attitude of or practice
by notethat state
Belmontin relation
301 U.S. 324.to particular rules of
16. See Fujii u. State of California (1952), 38 Cal. (2d.) 718; Pauling v. McElroy, supra
11; US'u. (1937),
international
17. law. ofAs
See e.g. s.12. Constitution stated
the Federal earlier,
Republic every
of Nigeria, State is
1979, s. 74.
obliged
Republicanto bring1963;its
Constitution, s. 69, laws in Constitution,
independence conformity 1960. with
international
18. For more on this,law, more
see A.B. so,
Oyebode, as
Treatyinadequacy
Making and Treaty of the laws
Implementation in

of Nigeria:
a State including its constitution cannot
An Appraisal, unpubl. D. jur. dissertation, Osgoode Hail Law School,
be
19. York University, Toronto, Canada, 1988 at 343 et seq.
pleaded
*3 N.W.L.R. 811.in African
Cf. e.g., justification of violation
Re-Insurance Corporatin
law20. Thus, assuming an African Court of Human
fl986]
of international
u. Abate Fantaye,

Rights
20. or26the
See Arts. and West African
27, Vienna ConuentionCourt
on The Lawof Justice
of Treaties, had been
1969. See aiso
in atp.
existence, such bodies would have been in a
Certain German interests in Polish Upper Silesia Case RC.I.J. (1926), Ser. A, No. 7,

position
A, No. 24,to pronounce
22; Free Zones of Upper Savoy and the District of Gex Case RC.I.J.' (1929), Ser.
at p. 12; Treatment of Polish Nationals in Danzig Case ECU. (1932), Ser.
A/B, No., 44, at p. 24; Anglo-Noruiegian Fisheries Case, (1951] ICJ Rep. 116 at
132; Nottebohm Case, (1955] ICJ Rep. 4 at 20-21.
International Law from a Practical Perspective 48
against draconian decrees like Nigerias State Security
(Detention of Persons) Decree Nc. 2 of 1984 for being
incompatible with international law. However, in the
absence of these international tribunals, it has fallen to
the lot of some of our braver judges to issue such
pronouncements21.
To sum up, the interplay of international law and
domestic law though somewhat theoretical in nature
has important practical implications. Its practical
significance comes in bolder relief when it is
remembered that the ends of law. whether
international or domestic, remain the same, namely,
the resolution of conflicts in the quest of peace, order
and justice.
The Sovereign in Court
Every once in a while, an aggrieved person discovers
to his chagrin that he is without relief, the doors of the
temple of justice having been firmly shut against him
because his traducer and intended defendant is a
sovereign (or his agent) and as such enjoys legal
protection from court processes and execution of
judgments. Hardly could anything be more dispiriting
and frustrating to one still nursing the wounds of a
breach of contract, default in rents or damage or loss
of a vehicle arising from the act or omission of this
omnipotent entity deemed beyond the reach of the
law on account of its sovereign status.
Whereas the law proclaims loudly, 'Ubi jus, ibi
remedium', the injured party is now compelled to hear
another tune, 'Rex non potest peccase! Thus, the law might
declare that there should be no wrong without a
remedy but not when the wrong-doer was the
sovereign himself or his agent22.
In international law, sovereignty is a hallowed
concept upon which inter-state relations in the past
400 years have been built. Indeed, the maxim, Par in
pctrem non habet imperium had become a cornerstone of
21. See 710.u Gen. [1996] 9
international law
N.W.L.R.
22. so much so that the immunity
e.g., Fawehinmi u. Abacha and Ors,

enjoyed by the sovereign ; could be viewed from at

23.[1985]
fci.2 Lauterpacht,
N.W.L.R. 211.
Olufunmilayo Ransome-Kuti Att. of the Federation,

least Cf. three different perspectives - Thesovereign

immunity, 28 B:Y.I.L.
the act ofofstate
220 (1951); J. McLoed,
Jurisdictional Immunities Foreignand
Problem of
States,diplomatic immunity 23.
By definition, sovereign immunity is the preclusionSovereign of a
Rev. 145 (1948).36 Can. Bar
litigant from pressing an otherwise meritorious cause
Immunity from Jurisdiction of the Courts,

of action against a sovereign or a party

International Law and Politics: An African Perspective
49
with sovereign attributes uniess the sovereign
consents to the suit2*. On the other hand, the act of
state doctrine espouses the view that the validity of
the public acts of the sovereign within its territory is
not to be questioned in the courts of another
sovereign24 25. Finally, diplomatic immunity places the
sovereign and, more especially, its diplomatic agents
beyond the pale of local officials and courts of the
receiving or host state26.
In view of the foregoing, it is of utmost
importance to properly analyse the subject-matter of
a dispute involving a private party, on one hand, and
a sovereign or its agent, on the other. The import of
proper clarification is borne out by the fact of
differences in the scope of immunity attaching to the
various categories. For instance, under contemporary
international law, sovereign immunity is no longer
absolute and covers only sovereign acts (acts jure
imperii) and does not extend to acts of a strictly
commercial nature (acts jure gestionis)27 28 whiN
diplomatic immunity, though severely tainted by
abuse, still serves-as a shield against local jurisdiction.
Interestingly, Nigerian courts have continued to
uphold the notion of absolute sovereign immunity
even in the face of a change in4the position of
customary international law on the subject. Thus,
whilethe Nigerian State has been unable to take
advantage of sovereign immunity in numerous cases
instituted against it in foreign courts, we have a
paradoxical situation locally where Nigerian courts
have
24. been
See 3lack's Lawleft with1252
Dictionary no(1979).
option but to stick* to what, to
all See
25. intents andu. Hernandez
e.g., Underhill purposes, (1897),had become
168 U.S. a deadv. Nizam
250 at 252; Rahimioola letter of
law376. U.S.
23 Instead
Hyderabad,
of effecting a bold change in the law on
[1958] A.C. 379 at 422-3; Banco Nacional de Cuba u. Sabbatino (1964),
398 at 428.
26. See generally
e.g., 29
the Vienna
sovereign immunity as Lord Denning had done in the
27. See 1961. our own Trendtex
judges have Corp.chosen to ofexhibit
[1977] 2 W.L.R.
Trendtex oncase,
Convention
356 at 362
Diplomatic Relations,.
greater timidity, preferring the
(per Denning, MR.);
Trading u. Central Bink Nigeria,

Rep.
28. 277; [1979] 2 Lloyd's
[1981]
Mercantil v. Central Bank of Nigeria,
See e.g.,
Hispano Americana

1 All
[1983] E.R.1110;
A.C.
CA/U244/87
and.the
244. 1Suit
ot
Embassy No.
1stof
Planmount
Kramdrltalou.u.Republic
Belgium,
of Zaire,
Government of the Kingdom of Belgium
Congresso del Partido,

November,
(unreported); Odeft
29. See note 27 supra.
1988
1733/89 of 29thSuit No. LD/
September,
for Malaysia and the Government of Malaysia,
u. High Commissioner

1989 (unreported).
International Lam from : Practical Perspective 50
legislator to do the job. As Akpata JCA had observed in
Italo Kramer, ..the doctrine of restrictive immunity is a
recent development which one must be cautious in
applying, particularly when the doctrine has no statutory
backing.30 y-
As far as diplomatic immunity goes, the courts can
also be relied upon to give unflinching support for its
absolute nature. Thus, the Supreme Court had little
hesitation in dismissing the applicant of an aggrieved
litigant protesting the treatment meted out to him
over his application for a visa31. Nor did the court fail
to accord immunity to an international institution that
had been dragged to judicial proceedings by a
disengaged member of staff32.
In view of the adherence of the courts to the idea
of absolute immunity of sovereigns and their agents
and, or servants, it does not seem than any useful
purpose would be served by attempts to initiate
actions against them in Nigerian courts unless and
until the country decides to bring its practice to
conform with that of the majority of States. In fact,
whenever a private person suffers loss, damage or
injury as a result of the act or omission of a sovereign,
the complainant would do well to seek alternative
methods of resolving the matter, for example, through
the diplomatic channel instead of the legal process
which could be long, tortuous and, in the final
analysis, indecisive jf not, in fact, counter-productive.
The wisdom in the alternative dispute resolution
method proffered becomes self-evident when it is
realised that even if a litigant proceeds and wins
against a foreign State, he would still have to face the
practical problem of enforcing the judgment
especially in view of the fact that international law
frowns against execution by way of seizure or other
measures of compulsion available to litigants within
the domestic sphere.
The Human Rights Question
Perhaps no area better still illustrates the relevance of
international law to the lives and aspirations of the
people of the world today than that of human rights,
30. See note 28 supra.
31. [1980]
1? undor
8-11
32. S.C. 100. classical
Re-Insuranceinternational law only States were
supra
Ishola-Noah u. TAe British High Commissioner,

note 19. African Corporation a. Abate Fantaye,

accorded the status of subjects, in the present epoch
3so much has been the concern of international law
l>!
with
c>; the interests of individuals that individuals are
now considered in many circles as subjects of
 International Law and Politics: An African Perspective 51
longer seen as mere objects of international law but
active possessors of rights under that law and enjoying
the capacity to create obligations therein as
participants in the international norm-creation
process33.
Practically speaking, what the international
protection of human rights implies is that it enables an
aggrieved national to make demands on his state of
nationality far beyond what the domestic law provides
based on internationally prescribed minimum
standards. If the State in question had signed and
ratified the requisite international instruments, the
complainant is in a position to seek redress beyond the
local courts34. Thus, aside from the UN Charter, there
are numerous instruments such as the Universal
Declaration of Human Rights, the International
Covenant on Economic Social and Cultural Rights and
International Covenant on Civil and Political Rights and
The Optional Protocols attached thereto, the
Convention against Torture and other Cruel. Inhuman
or Degrading Treatment or Punishment, the
Convention on the Elimination of Discrimination
against Women and the Convention on the Rights of
the Child, etc. Under these instruments, rights of
nationals of state-parties enjoy protection from the
antics of tyrants and despots who would otherwise
have terrorised them with impunity.
Unfortunately, dictatorial regimes are notoriously
chary towards ratification of these international human
rights convention. This makes it very difficult to bring
them to account before international tribunals for
falling short of the prescribed standards of human
rights in their oppressve ruie. Nevertheless, the
emergence of human rights on the front-burner of
international discourse had,given a fillip to the-efforts
of crusaders for hurpan rights, democracy and good
governance
33. across
In fact, according thejurists,
to some world.international law is ultimately addressed to
Nigeria numbers among countries which have had
individuals and not States. For more on this, see H.C. Lauterpacht, International Law
and Human Rights, passim (1950).
the misfortune to endure the thescourge
34, This is the position in Europe, for Example, where of military
European Commission is
dictatorship
empowered to for so complaints
entertain long. Since military
of citizens dictatorship
against their and
states of nationality as
respect
providedfor human
for under rights
the European are mutually
Convention on Human Rightsexclusive,
and Fundamentalthe
battle for 1950.
Freedoms, theForobservance of Starke,
more on this, see J.G. human rights
Introduction is\ at the
to International Law

same time once for 'the extirpation of military rule and

364-3 (1989).

establishment of democratic government. Accordingly,

in the midst of a weiter of decrees embodying ouster
clauses and retrospective rules the application of which
International Law from a Practical Perspective 52
by legislative judgment and executive lawlessness, the
Nigerian human rights community has had to seek
succour in international law35 36. These days, hardly is a
matter concerning human rights violation argued in
court without the pleadings making heavy reliance cn
international law or, more specifically, the African
Charter on Human apd Peoples Rights. Since its
transformation into Nigerian law in 19S2-. the Charter
seems to have opened new vistas for the protection of
human, rights especially during the life of oppressive
and dictatorial regimes. It is gratifying that after a few
faltering steps, the courts are finally becoming more
receptive to the notion of the primacy of international
law over the domestic law whether in relation to
human rights or indeed any other subject37.
However, a controversy seems to be brewing
regarding the procedure to adopt in order to enforce
human rights pursuant to the African Charter. The
enabling legislation having omitted any guidelines on
the procedure for its enforcement, the practice
hitherto has been to leave the option to the litigant.
This, in practical terms, had been the existing human
rights procedure envisaged under the constitution38.
Regrettably, the Court of Appeal made some
reservations against this approach in its recent
landmark decision of Fawehinmi a Abacha39. In the opinion
of the court, the appellant was wrong-to have
proceeded by way of Section 42 of the 1979
Constitution when the enabling legislation had not
prescribed
35. Cf. A. Oyebode.that
What's procedure.
Left of the Law? paperHowever,
delivered to theaNBA,
leciding
Akure Branchcivil
rights lawyer
on February has subjected the opinion of the court to
23, 1995.
severe
36. See the criticism, arguing
"African Charter on Human and that it-was
Peoples Rightstoo late inandthe day
(Ratification
for the court to castigate a litigant who had in perfect
Enforcement)" Act, Cap 10; Laws of the Federation of Nigeria, 1990.

exercise of his freedom of choice decided to employ

37. See e.g. Fawehinmi u. I.C.P, Suit No. 11/324/89 of 31st July, 1989 (unreported);
Cbenga Komolafe u. A.G. of the Federation, Suit No. FHC/2/M59/89 of 1st
an December,
established procedure
1989 (unreported); Opeyemifor ventilating
Bamidele his
& Ors. u. Grace grievance
Alele-Williams, Suit
when the law
No. B/6M89 was
of 26th silent1989
February, on(unreported);
the procedure to adopt
Osheuire u. British 40.
Caledonian
More importantly, the Supreme Court had previously
[1994]note
6 N.W.L.R. 475;
Airways Ltd., [1990] 7 N.W.L.R. 507 at 519; Agbakoba u. Director,
' SSS,
endorsed
38. See s. 42,u.1979
Fawehinmi
domestication
21
the
Abacha, view
Constitution
ofOgugu
Rules, 1979. See also
and the that
the&African
subsequent
supra.
Fundamental
Charter
Ors. u The State,
*Rights (Enforcementto the
Procedure)
[1994] 9 N W.L R1 at 26-27, 47.

39. See note 21 supra. ,

40. Femi
1 Falana,
(1997).
of Appeal Erred, Social Justice 1
Fawehinmi a Abacha: Where the Court
International Law ar.d Politics: An African Perspective
53
on Human and Peoples' Rights, its provisions had
become enforceable in much the same manner as are
the human rights provisions or the 1979 Constitution41.
While the controversy rages on, it needs be
pointed cut that ail that international law requires of
States is that they execute in good faith .their
international obligations in consonance with the
maxim, Pacta sunt servanda. The ways and means of
ensuring this lie entirely in the hands of States.
However, any State which by any act or omission
impedes the realisation by its nationals of their
internationally guaranteed rights stands the risk of
being impugned for violating international law with ail
the embarrassment arising therefrom.
Aspects of International Criminal Law
The phenomenal advances in aviation technology and
global communications generally have posed
new.challenges to international law especially in
relation to crimes committed across frontiefs. Thus, a
group of persons domiciled in far-flung comers of the
world could hatch a conspiracy to commit criminal acts
in one country or several countries; a crime could
commence on the territory of a State and be
consummated in another with the principal offender
escaping to a third State. In fact, possible scenarios of
international criminality are limitless.
Nigeria has in recent times been witness to a
variety of criminal acts with an international flavour
ranging from obtaining money under false pretences,
the so-called advance fee fraud otherwise tagged,
419, illegal importation and.dumping of toxic waste,
aircraft hijacking and illegal export of cultural artifacts.
The general posit.on under international law is that
jurisdiction in criminal matters resides in the State on
whose territory a criminal act is committed42. This is
the so-called territoriality principle which is further
divided into the subjective territorial and objective
territorial principles. Accordingly, under the subjective
territorial principle, a. State is entitled to try criminals
for offences fully committed within its territory while an
offence
41 Id. at 9. commenced elsewhere but completed within
t

She Statesupra,
42. Brownlie, cannotebe
6, attried
300. under the objective territorial
principle. The common example of the latter is a shot
fired across the border killing a perso n located on the
territory of another State.
There are other principles of establishing
international Law from a Practical Perspective 54
committed by nationals irrespective of where such
crimes had been committed, that is, the so-called
active nationality principle and also the exercise of
jurisdiction over crimes committed abroad against
nationals, otherwise known as the passive nationality
principle.43. Furthermore, there is the protective
principle which-permits a State to claim jurisdiction
over crimes committed against its interest abroad
irrespective of the nationality of the offender44.
In recent times, the notion of international crimes
and that of crimes against humanity have attained high
resonance in international society. By international
crime is meant a crime declared to be such by a treaty,
State-parties to which are obliged to enact domestic
laws criminalising such acts if previously they were not
deemed criminal. Crimes against humanity, on
the'other hand, are crimes committed against the
entire ..international community, thereby commanding
universal jurisdiction such that they are triable by any
State, irrespective of the nationality of the offender or
place of commission of the offence45. Thus, whereas
international crimes are offences listed in the criminal
codes of individual States albeit at the instances of
international law, crimes against humanity are acts
hostis humani generis incumbent on members of the
international community erga omnes to try and punish46.
Among offences akin to international crimes are drug
trafficking, pornography and aircraft hijacking while
crimes against humanity include piracy jure gentium, slave
trade, genocide and apartheid.
The proliferation of international criminal gangs
involved in crimes such as drug trafficking,
counterfeiting, money laundering, computer fraud,
prostitution and illegal arms trade in various parts of
the world has given rise to intensified collaboration
among the police, customs and other security agencies
of members of the international community. However,
in view of the fact that extra-territorial exercise of
criminal jurisdiction is generally abhorred in
international
43. !d. at 303. law as an affront on state sovereignty, the
practice is for
44. Saa a.g., Joyce States
u. D.P.P., toA.C.
[19491 rely
347.on extradition
.' agreements
for the op.arrest
45. Srownlie, of fugitives from justice. Besides,
cit. at 304-5.
considerable
46. Id. intelligence exchange among States
occurs under the aegis of international organisations
such as INTERPOL and the various Security operation
International Law and Politics: An African Perspective 55
have to continue to rely on individual States for the
enforcement of international criminal law as well as cd
hoc international war crimes tribunals along the lines
of those set up for Bosnia and Rwanda.
Nigerias efforts in combating crimes across
frontiers such as drug trafficking, smuggling and
armed robbery have taken the form of extradition
treaties and agreements on transborder co-operation
as well as mutual assistance4'. Indeed, the creation of
the National Drug Law Enforcement Agency (NDLEA)
in 198943 can be viewed as a measure taken in
fulfillment of the Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances of 198847
48 49. Also, the incidence of armed robbers snatching
vehicles and driving them across the borders to the
neighbouring countries is apt to reduce if the
necessary steps are taken to sign and ratify existing
draft agreements on transborder cooperation between
Nigeria and some of these countries. By so doing,
Nigeria would have ensured a significant impact by
international law on the every day life of Nigerians and
our neighbours.
Summary
Membership of the UN is at present close to 190, each
State possessing its own legal system and peculiar way
of doing things with rules. Yet, we are living in a much
shrunken world where sovereignty is fast receding and
the human destiny seems to have become one. An
occurrence in one part of the planet is beamed across
the globe in seconds. The international exchange in
goods and services is experiencing unprecedented
growth side by side with pockets of unspeakable want
and miseny in various parts of. the world. The end of
the Colpl War has thrown up new challenges for
international peace and security while the yearnings of
the people of the world for democracy and good
governance Oyebode,
47.BeninA.Treaty Nigeria-
Cf. e.g:,keep rising unabated.
Relations in
It is within this conjuncture that international law is
241 (Asiwaju
called upon to perform its delicate task ofid., ensuring
and Igue. eds., 1988);
The Nigeria-Benin Transborder Co-operation

order
48. Seeamong
the in
Relations:the various
No. members of the
Nigeria-Niger
international
48425 (Asiwaju and Barkindo,
Treaty An Overview The Nigeria-Niger Transborder
DecreeCo-operation
of 1989.
community
eds.. 1993). with
49. See A. Oyebode, Legalvarying
National Drug
Implications degrees
Law Enforcement
of Drug Abuse of
and success at National
Drug Trafficking, different
times and places.
Anti-Drug Seminar, NDLEA. 1991.
This contribution has attempted to strip
international law of its recondite aspects with as view
PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND
PEOPLES' RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA
i

13

b) eliminate all stereotypes in textbooks, syllabuses and the media, that

perpetuate such discrimination;

c) protect women, especially the girl-child from ail forms of abuse, including
sexual harassment in schools and other educational institutions and provide
for sanctions against the perpetrators of such practices;

d) provide access to counselling and rehabilitation services to women who

suffer abuses and sexual harassment;

e) integrate gender sensitisation and human rights education at all levels of

education curricula including teacher training.

2. States Parties shall take specific positive action to:

a) promote literacy among women;

b) promote education and training for women at all levels and in all
disciplines, particularly in the fields of science and technology;

c) promote the enrolment and retention of girls in schools and other training
institutiohs and the organisation of programmes for women who leave
school prematurely.

Article 13
Economic and Social Welfare Rights

States Parties shall adopt and enforce legislative and other measures to guarantee women
equal opportunities in work and career advancement and other economic opportunities. In
this respect, they shall:

a) promote equality of access to employment;

*
promote the right to equal remuneration for jobs of equal value for women
and men;

ensure transparency in recruitment, promotion and dismissal of women

and combat and punish sexual harassment in the workplace;
*
guarantee women the freedom to choose their occupation, and protect
them from exploitation by their employers violating and exploiting their
fundamental rights as recognised and guaranteed 1 by conventions, laws
and regulations in force;

create conditions to promote and support the occupations and economic

activities of women, in particular, within the informal sector;

establish a system of protection and social insurance for women working in

the informal sector and sensitise them to ' adhere to it;

introduce a minimum age for work and prohibit the employment of

children below that age, and prohibit, combat and punish all forms of
exploitation of children, especially the girl-child;

take the necessary measures to recognise the economic value of the work
of women in the home;

guarantee adequate and paid pre- and post-natal maternity leave in both
the private and public sectors;

ensure the equal application of taxation laws to women and men;

recognise and enforce the right of salaried women to the same allowances
and entitlements as those granted to salaried men for their spouses and
children;
 s

14

b) promote the right to equal remuneration for jobs of equal value for women
and men;

c) ensure transparency in recruitment, promotion and dismissal of women

and combat and punish sexual harassment in the workplace;
*
d) guarantee women the freedom to choose their occupation, and protect
them from exploitation by their employers violating and exploiting their
fundamental rights as recognised and guaranteed ' by conventions, laws
and regulations in force;

e) create conditions to promote and support the occupations and economic

activities of women, in particular, within the informal sector;
f) establish a system of protection and social insurance for women working in
'
the informal sector and sensitise them to adhere to it;
g) introduce a minimum age for work and prohibit the employment of
children below that age, and prohibit, combat and punish all forms of
exploitation of children, especially the girl-child;
h) take the necessary measures to recognise the economic value of the work
of women in the home;

i) guarantee adequate and paid pre- and post-natal maternity leave in both
the private and public sectors;
j) ensure the equal application of taxation laws to women and men;

k) recognise and enforce the right of salaried women to the

same allowances and entitlements as those granted to salaried men for their spouses
and children; '
i

Article 23.
(1) Everyone has the right to work, to free choice of employment, to just and favourable
conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring tor
himself and his family an existence worthy of human dignity, and supplemented, if
necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his
interests.

'' fop

Article 24.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and
periodic holidays with pay.

A
Ton

Article 25.
(1) Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care and necessary
social services, and the right to security in the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether
born in or out of wedlock, shall enjoy,the same social protection.

, A
Top

Article 26.
{1) Everyone has the right to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory. Technical and professional
education shall be made generally available and higher education shall be equally accessible to
all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the
strengthening of respect for human rights and fundamental freedoms. It shall promote
understanding, tolerance and friendship among all nations, racial or religious groups, and shall
further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.

A
Top
 INTERNATIONAL LAW VERSUS MUNICIPAL LAW: A CASE
STUDY OF SIX AFRICAN COUNTRIES; THREE OF WHICH ARE
i MONIST AND THREE OF WHICH ARE DUALIST

By
Duru, Onyekachi Wisdoiti Ceazar*
Readers are reminded that this work is protected by copyright. While they are free
to use the ideas expressed in it, they may not copy, distribute or publish the work or
part of it, in any form, printed, electronic or otherwise, except for reasonable
quoting, clearly indicating the source. Readers are permitted to make copies,
electronically or printed, for personal and classroom use.

Abstract

The-relationship between international law and municipal law

has traditionally been characterized from a monist or dualjst
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 coun tries; 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: onyekachidtinifn grnail.com; Tel: +234-8037707496.

I

Plor'trnnin enn\/ cn/ailahlo at- httrv//ccrn rnrn/ahctrart-91 A9Q77

 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
I
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 Blacks Law Dictionary1 2 International Law is defined as:

t
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 criihes).
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; j 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 conception" to a modern approach

,
B. A. Garner (Ed. in Chief), Blacks Law Dictionary Eight Edition (United States: Thomson West, 2004) at
835. See also, I. M. O Nwabuoku, International Law vis-a-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. <

Municipal Law
The Blacks 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 then- 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 communi ties into which humanity is divided.
In P. C. Jessup, A Modern Lmv 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. at, 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.

f
 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.5 6 7 8 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. 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.
f

TAgain, 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;

8
international law is immediately applicable within national legal systems.

5
See-M. Akehurst, A Modem 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. 0. 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 raonists, international law is superior to national law.9 10 11 12 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

t

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

12'
The Blacks Law Dictionary, 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. *
 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.5 6 7 8 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/ 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.
. 3'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.

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.
 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 14 Thus, in Minister of
Home Affairs v, Fisher, 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
A

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 fans 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.
t
Traditional Theories on the Relationship Betw een 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 Dlngerence: 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.
 li

theories: monism and dualism. 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 Naticnn 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 -

nationa! law Thus, the two systems are interrelated part of a strum ~ .k ---la

most of .whom belong to

the natural law Gchwof include Hugo Grotius, a Dutch scholar and diplomat who is

generally regarded as the father of the nationalist school of natural law; 23 24 25 Hans

Kelsen; and Herschel Lauder Patch - all of n have at 1 that the international legal

order is significant only as par;, of a universal legal .order which comprises the

national legal order as well. 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. OConnell, International Law Second Edition (London: Stevens & Sons,
1970) & J. G. Starke, Monism and Dualism in me 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, Internet;: Law r';vr L_;tion
(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. :..j , ' -a anc i- ;.,tional
Human Rights Law: Cases of Botswana, Namibia and Zimbabwe (A: iers hot: Asngais, 2UU1 j.
 12

orders constitute a single universal system, but, in cases of conflict, national legal

orders take a subordinate position.

Some constitutional arrangements in Africa reflect the monist approach

*
to the reception of international law. For instance, the constitutions of former French
colonies26 27 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-a-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 llj.4 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, 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',, while commenting on the domestic status of the African Charter on
Human and Peoples Right (ACHPR), 1981, the Supreme Court of Namibia, in that
case, noted the following:29 30 31 32

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, Namibias ratification of the

A

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.

Similarly, in Government of The Republic of Namibia & Another v.

"XT

Cultura 2000 & Another, the Namibian Supreme Court emphasized that;

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.
' o"5

Furthermore, in S. v. Mushwenci & Other, 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).
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

34
constitution.
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 injudicial practice in Senegal. The best example is the Habre
Case,34 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 Committees Concluding Observations CCPR/C/79/Add. 82 of 19 November
(1997) on Senegals 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 legislatures intention to provide for the punishment of war
crimes by military courts at the national level, as evidenced by the Democratic
Republic of Congos 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
) y

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, t 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 39 * *
* 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. 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
38 Law, p. 27:42.
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
states as its subject; See Lindholt, L.; Questioning the University of Human Rights: The African
the
on Human and People Rights in Botswana, Malawi and Mozambique, Dartmouth: Ashgate, (1997)
Charter
pp. 84-85.

i
 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.J. 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 Worths, 1994) at 64.

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-a-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 reechoed 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 applicants 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.
 2

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 tc> 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 Zimbabwes 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.

/ t
y

For Lands, Land Reform And Resettlement And Another,51 52 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

r '
is governed by domestic constitutional law.
>.

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.5j
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.