Sharon Hofisi Legal Letters
Zimbabwe is part of a family of nations that form the international community. There are various laws that are used to unite States. States can use various sources of international law. Hard sources are found in Article 38 of the Statute of the International Court of Justice. We can talk of a loose hierarchy of such sources. They include treaties, customary international law, general principles of law and writing and teachings of eminent jurists.
Soft sources include declarations and regional guidelines. Some of the sources of law can be considered to be primary or secondary. For Zimbabwe, we may start the argument on its relationship with international by referring to the Constitution.
The Constitution speaks to the existence of three if not four sovereigns: The State called Zimbabwe which is referred to as a unitary, democratic and sovereign Republic; the people-who vest State authority in the three pillars of the State; the Constitution itself which places citizens and the State under it and the Head of State and Government as a sovereign.
The Constitution of Zimbabwe speaks to the importance of international law. We may start with an examination of the general relationship between international law and domestic law. That this has been subject of scholarly debates is now axiomatic. John Austin and Hans Kelsen lead the two schools of thought. As such, the explanation of the relationship has been popularly called the Kelsen-Austin debate. The streams of thought that follow the two eminent thinkers focus on the primacy of either international law or domestic law. Each stream of thought has exponents.
Those who give primacy to international law, such as Hans Kelsen, would argue that international law is a law of coordination. There is no need for incorporation of international law into domestic law. The two systems are largely seen as part of a single legal order.
One prominent disciple of Kelsen is Hersch Lauterpacht who came up with a unity of law thesis. He accepts the argument on the sovereignty of States. Their powers must however be checked. This is important in the fields or branches of international law such as international human rights law, international environmental law, international trade, international investment and international humanitarian law.
The theory that explains the primacy of international law is called the monist theory. Other scholars have crafted variegated forms of monist theory such as the monist inverse theory. The treaty of Westphalia can be used to buttress the arguments on the primacy of international law. The monist argument can be used to explain how customary international law becomes part of the law of Zimbabwe. Section 326 of the Constitution states that: customary international law is part of the law of Zimbabwe, unless it is inconsistent with this Constitution or an Act of Parliament.
Essentially, we can talk about a unity between domestic and customary international law. There is no need for incorporation of customary international law into domestic law. Courts are obliged in terms of section 326 to adopt reasonable interpretation of legislation that is consistent with customary international law.
The primacy of international law is further explained using the Treaty of Westphalia which gave credence to the concept of absolute sovereignty. States came to claim sovereignty over certain territories after Westphalia.
They could now establish defined boundaries; enter into relations with others; define their population; and establish an effective government.
Using this Treaty, an argument can be mounted that sovereignty came from international law. The community of States that came together had to establish a legal framework. Those States that came together could then acquire territories and assert their sovereignty. Sovereignty is no longer absolute. Put differently, it is now relative. States are required to balance between State sovereignty and other forms of sovereignty alluded to above. The term ‘State’ is not defined in the definitions section of the Constitution-section 332.
This article will use the term in the Montevideo sense. Those who follow John Austin argue that international law is not really a body of law. We may talk about moral or political obligations. States decide to domesticate provisions of international law.
The relationship between domestic and international law is a dual one. International law is different from domestic law. States cannot be legally bound to follow the provisions of treaties unless they have incorporated them into domestic law. The justification for this view is steeped in the argument that international law does not have a sovereign who issues commands which must be obeyed. There is no sovereign who can impose punishment in the event that States fail to observe international law.
To employ Austin’s arguments, the primacy of domestic law needs not be doubted. Once it is admitted that international law is not real law, the argument ends there. Austin’s disciples include Fitzmaurice who argue that both systems of law are superior in their own regard.
He uses the example of the French and English legal systems to draw a distinction between the two systems.
To Fitzmaurice, superiority is not a matter of content but rather of field of operation. The Constitution becomes the highest source of instruction.
A quick look at the Constitution of Zimbabwe will show how Zimbabwe incorporates international law into its domestic legal system. Section 327 of the Constitution indicates that: An international treaty signed by the President or under Presidential authority does not bind Zimbabwe until it has been approved by Parliament.
It does not form part of the law of Zimbabwe unless it has been incorporated into the law through an Act of Parliament. Other agreements which are not international treaties but have been signed by the President or under Presidential authority with foreign organizations or entities do not bind Zimbabwe until they have been approved by Parliament.
This makes constitutional sense since Parliament is involved in the law making process. Further, the Constitution gives powers Parliament an unfettered discretion to decide by resolution, not to subject incorporation of treaties to parliamentary approval.
The involvement of Parliament also makes sense because it represents people. The people are the sovereignty who vested their power to make law in the legislature. Further, the legislature comprises Parliament and the President. It therefore follows that if a president signs a treat or delegates someone to do so, Parliament must also be involved.
The Zimbabwean State is obliged to ensure that it incorporates all conventions, treaties and agreements to which Zimbabwe is a party into domestic law. This is enshrined in Section 34 of the constitution. Incorporation or domestication of treaties is important to constitutionalism because it ensures how a country is committed to complying with international law. The Constitution is a sovereign in its own right as indicated above. It is also important to refer to Article 27 of the Vienna Convention on the Law of Treaties which states that States may not invoke the provisions of internal law as justification for their failure to perform a Treaty.
Using the provision above, Zimbabwe is obliged to ensure that it complies with the provisions of treaties to which it is a party. Courts of law, as part of the three pillars of the State, are also constitutionally obliged to take into account international law and all Treaties and conventions to which Zimbabwe is a party. This obligation is encapsulated in section 46 of the Constitution. From the foregoing analysis, Zimbabwean citizens must always implore the courts of law to apply international law in the resolution of their disputes.
This will go a long way in safeguarding constitutionalism and the rule of law in Zimbabwe. The Constitution is an extraordinary Statute that speaks to the need to respect the people; the supremacy of the Constitution, the founding values of democracy as well as the fundamental rights that are protected under Chapter 4.
Sharon Hofisi writes in his personal capacity. Feedback: sharonhofiigmail.com