2 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. 7
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. 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 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”. The 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 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. 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 8
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. Dualists regard international and municipal law as separate entities, and municipal law can only apply international law once it has been incorporated into the legal system of the country. The incorporation of international agreements into the national legal system can be achieved by formal adoption through a parliamentary procedure, through other political acts, or given effect by the national courts. Monists regard international and municipal law as parts of the same legal system .According to them municipal law is subservient to international law. Dualism - or rather, the doctrine of transformation - for its part perceives international law and national law as two distinct and independent legal orders, each having an intrinsically and structurally distinct character. 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.
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- Spring '16
- dickson chuma