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Constitutional Adjudication in Africa edited by Fombad, Charles M (31st August 2017)

Part 3 The Impact of Transjudicialism on Constitutional Adjudication, 9 The Effects of International Law Norms on Constitutional Adjudication in Africa

Magnus Killander

From: Constitutional Adjudication in Africa

Edited By: Charles M Fombad

(p. 209) The Effects of International Law Norms on Constitutional Adjudication in Africa

1.  Introduction

Since the first written constitutions emerged in the late eighteenth century, states have borrowed from each other in designing their constitutions. In Africa, the colonial heritage is still evident in constitutional design. African states have also borrowed liberally from each other (and from outside the continent) when revising their constitutions, something that occurs quite regularly in most African states. Nowadays, constitutional design is an industry with consultants travelling the globe and international organizations, such as the United Nations (UN) and the African Union (AU), involved in constitutional design processes, particularly in post-conflict societies.1

Many ideas in constitutional design have their origin in both international and foreign national laws. Some international law principles may have their origin in foreign national laws, just as some principles found in many constitutions may originally have emerged from international law. The direct influence of international law on constitutional design is most clearly evident in the area of human rights, although here foreign national laws also play a role.

This chapter deals with how international law has impacted on African constitutional law and constitutional adjudication in Africa.2 The focus is on human rights protection, the main issue in constitutional adjudication. How has international human rights law, in theory and in practice, found its way into national constitutional human rights protection?

The chapter is divided into five parts. The first section deals with the way in which international law has influenced the text of national constitutions, and the type of international law that has particularly influenced national constitutional law in Africa. Attention is particularly focused on the influence of international human rights law, whether directly or (p. 210) through comparative international law. The third section deals with constitutional adjudication. This section first discusses how international law is incorporated into national law, before turning to the influence of international law on constitutional adjudication in practice. The fourth section deals with one of the critiques of the internationalization of constitutional adjudication, namely, the assertion that international law lacks democratic legitimacy. The final section contains concluding remarks.

2.  International Law in African Constitutions

2.1  Influence of international law on African constitutions

The external influence on constitutional design in Africa has a long history. The Bond of 1844 between the British and the chiefs in what today is Ghana included a requirement that the chiefs should ensure ‘protection of individuals and property’ and abolish ‘barbarous’ customs in exchange for the British respecting the authority of the traditional authorities.3 The 1847 constitution of Liberia was, as could be expected of a constitution drafted by freed American slaves and their descendants, inspired by the constitution of the United States.4 The 1931 constitution of Ethiopia, the first modern constitution of the country, was based on the Japanese Meiji constitution.5

These are clear examples of the influence of foreign law on constitutional design. Before the second half of the twentieth century, one could not talk of the influence of international law. International law had no influence on how a state regulated its own affairs. This changed after the Second World War, in particular through the emergence of international human rights law.6 The former colonial powers significantly influenced the independence constitutions of African states. This included the adoption in whole or in part of their governance structures, whether the British Westminster model or the French Fifth Republic model. However, there was also some international law influence. Former French colonies included adherence to the Universal Declaration of Human Rights (UDHR) in the preamble to their constitutions. One of the main inspirations for the bills of rights of former British colonies was the European Convention on Human Rights (ECHR).7

The influence of international law continued as African states amended their constitutions or adopted new constitutions. No African state has retained its independence constitution without amendments. Most have adopted completely new constitutions. In the 2000s, new constitutions have been adopted in twenty-three of fifty-five African states.8 Some of these constitutions have already been amended, while many older constitutions have been extensively amended over the years. Constitutions are usually adopted by referendum after having been drafted by a constitutional assembly, representative of (p. 211) various stakeholders in society. The drafting itself is usually done by a smaller group, often assisted by international advisers. However, national drafters have often had extensive international exposure through, for example, study abroad. Even where the constitutional drafters would have had all their education in their home country, they would have had exposure to international law, in particular international human rights law. Of course, this exposure also relates to comparative foreign law.

Should international law eventually mean the convergence of constitutions? Laibuta argues that: ‘[t]he AU should have a model constitutional text that member states can adapt to their own contexts. Minimum standard constitutional provisions would promote uniformity in constitutionalism and rule of law provisions among its members’.9 The AU has adopted model laws with some success in some areas, such as access to information. However, many would argue that a constitution should be home-grown, even though it may borrow from different sources. Nonetheless, the AU and other international organizations, such as the UN, provide some guidance to states on constitutional design.

While not a ‘model constitutional text’, the African Charter on Democracy, Elections and Governance (African Democracy Charter) provides extensive guidance to states, even though it only calls for a revision of national law and regulations and not specifically of constitutions.10 However, the African Democracy Charter does provide that: ‘[s]tates parties shall ensure that the process of amendment or revision of their constitution reposes on national consensus, obtained if need be, through referendum’.11 As of April 2017, the African Democracy Charter had been ratified by twenty-four of the fifty-five AU member states. The regional human rights system also provides that a state must ensure, through constitutional or other means, that human rights violations are addressed to avoid being held accountable by regional bodies. The same follows from UN membership and the extensive ratification by African states of UN human rights treaties.

Explicit references to international law in African constitutions are relatively rare. Most references relate to the ratification of treaties and their applicability in national law and adherence to, or incorporation of, international human rights instruments, as is discussed below. A number of African constitutions provide that the state should act in accordance with the UN Charter.12 Mention is sometimes also made of the AU13 and other regional organizations or simply international organizations of which the state is a member.14 A few constitutions provide that the state may join international organizations that may limit their sovereignty.15

Issues on which African constitutions make reference to international law include sovereignty;16 respect for international treaties;17 natural resources;18 asylum;19 property;20 use of force;21 boundaries;22 diplomatic protection of citizens abroad;23 elections;24 foreign (p. 212) policy;25 foreigners in public functions;26 international criminal law;27 protection of the child;28 extradition;29 dumping of waste;30 national security;31 and wildlife protection.32 Other provisions are clearly inspired by international law, even though not explicitly making reference to it. For example, the constitutions of Congo-Brazzaville, Ethiopia, Malawi, Rwanda, and Senegal have provisions dealing with genocide or crimes against humanity. Article 143(4) of the Kenyan constitution is directly attributable to developments in international criminal law, in particular the Rome Statute of the International Criminal Court, to which Kenya is a party.

Article 143(4) of the Kenyan constitution provides: ‘The immunity of the President under this article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity’. This provision remains in place, even though there have been calls for its amendment, in line with the Kenyan government’s opposition to the indictment of President Kenyatta before the International Criminal Court.33 Kenya encouraged the inclusion of immunity in the Protocol set to provide the African Court of Justice and Human Rights with criminal jurisdiction over international crimes, including crimes against humanity.34 This is an example of how international law can influence a constitutional provision which is later succeeded by events that cause the state to push for a revision of the international law in a particular area.

2.2  Influence of international law on constitutional provisions relating to human rights

The incorporation of human rights provisions in African constitutions has a long history. A bill of rights was included in the 1847 constitution of Liberia. A number of human rights provisions were included in Ethiopia’s 1931 constitution, including freedom of movement and the prohibition of arbitrary arrest.35 Human rights provisions were in one way or another included in all independence constitutions (except that of South Africa), ranging from a brief mention in the preamble, such as in the 1962 Tanzanian constitution, to the mention of some rights in the constitutions of Ghana (1957),36 Niger (1960), and Mali (1961), to extensive bills of rights.37

(p. 213) References to human rights instruments in the preamble38 or elsewhere in the constitution39 are included in many constitutions. These references are most often to the Universal Declaration of Human Rights (UDHR), but references to the African Charter on Human and Peoples’ Rights (ACHPR) are relatively common. The constitution of Guinea even makes reference to the Protocol to the ACHPR on the Rights of Women in Africa (Maputo Protocol) and the Protocol on Democracy and Good Governance of the Economic Community of West African States (ECOWAS). The once common reference in former French colonies to the French Declaration of the Rights of Man and the Citizen has disappeared from many constitutions after the post-1990 wave of constitutional reforms on the continent.40 The constitution of South Sudan is an exception in that, in addition to international human rights treaties, it makes repeated reference to the Millennium Development Goals (MDGs).41 The limitation of references to instruments such as the MDGs is based on the fact that that they have a limited temporal scope. For example, the MDGs were goals set to be achieved by 2015 and have been replaced by the Sustainable Development Goals.

The inclusion of references to international human rights treaties in constitutions in most instances does not mean that these treaties form part of the constitution. Where this is the intention, it is explicitly done, as in the case of the Benin constitution.42 In effect, the inclusion of a human rights treaty as constitutional text causes the state in question to have two bills of rights, as illustrated by the Constitutional Court of Benin, where violations of both the human rights set out in the constitutional text and the ACHPR are often found.43 As long as there are no conflicting norms, this should not pose a problem.

More common than actual inclusion in the constitution is the influence of human rights treaties on the formulation of national bills of rights. This influence in Africa dates back to the influence of the ECHR on the bill of rights in the constitutions of states that gained independence from Britain. On the other hand, it was the UDHR that influenced the approach of states that gained independence from France and Belgium. International (p. 214) human rights law has continued to influence constitution drafters.44 When South Africa finally emerged as a democracy, international human rights law was one of the main inspirations for the drafters of the interim and final constitutions.45 In fact, one of the constitutional principles included in the interim constitution to guide the drafting of the final constitution provided that: ‘[e]veryone shall enjoy all universally-accepted fundamental rights, freedoms and civil liberties’.46 The influence of international law has apparently been indirect, with states borrowing provisions from other states in the process of constitution drafting.47

It appears that the influence of African regional human rights treaties is limited. For example, Heyns and Kaguongo note that only seven constitutions recognize the rights of ‘peoples’, despite the prominence given to these rights in the ACHPR.48 At the time their study was conducted, Heyns and Kaguongo noted that five rights were recognized in all fifty-three (excluding Morocco) African constitutions: non-discrimination; freedom of opinion and expression; freedom of movement; and the rights to privacy and property.49 It is worth noting that the right to privacy is not explicitly included in the ACHPR.

3.  International Law in Constitutional Adjudication: Incorporation, Application, and Interpretation

3.1  International law in the national legal order

As noted above, only a few states give specific human rights treaties constitutional status, thus creating parallel bills of rights. However, these treaties play an important role in the national legal order in most other states. This section explores the different approaches of states to the relationship between international law and national law, with a particular focus on human rights treaties.

The executive negotiates and concludes bilateral and multilateral treaties. Many states provide in their constitutions that all treaties50 or specific categories of treaties, such as those relating to human rights,51 ‘concerning the status of persons’52 or ‘involving international organizations’,53 must be ratified by parliament. Article 114 of the Gabonese constitution is typical of that of many African civil law states, and provides as follows:

Peace treaties, commercial treaties, treaties relative to international organizations, treaties which engage the finances of the state, and treaties concerning the status of persons can only be approved and ratified by virtue of a law.

Clearly, human rights treaties fall within the scope of a provision such as this. A number of African constitutions explicitly incorporate specific international instruments as (p. 215) part of the constitution,54 or make treaties superior to national law but not to constitutional norms,55 or incorporate such norms as ordinary law.56 Most civil law constitutions include the requirement of publication in the national gazette before a ratified treaty is applicable in the national legal order.57 Malawi incorporates treaties ratified before the commencement of the constitution, which include many of the major human rights treaties.58

Section 34 of the 2013 constitution of Zimbabwe is exceptional. It provides that: ‘[t]he state must ensure that all international conventions, treaties and agreements to which Zimbabwe is a party are incorporated into domestic law’. Zimbabwe remains a dualist state and, therefore, requires action to be taken to transform treaties into national law. The question remains whether Zimbabwean courts will interpret section 34 as an invitation to rely on international treaties even where the state has failed to incorporate these, as it is constitutionally obliged to do. In the Mapingure case, decided under the new constitution, the Supreme Court held that:59

In strict constitutional terms, the prescriptions of [international law] instruments cannot operate to override or modify domestic law unless and until they are internalised and transformed into rules of domestic law … Nevertheless, it is proper and necessary for national courts, as part of the judicial process, to have regard to the country’s international obligations, whether or not they have been incorporated into domestic law. By the same token, it is perfectly proper in the construction of municipal statutes to take into account the prevailing international human rights jurisprudence.

Another aspect regarding the ratification of treaties, namely, how states should ensure that existing national legislation is in conformity with new treaty obligations, is rarely dealt with in constitutional law.60

The constitutions of many civil law countries contain a reciprocity provision stating that the application of the treaty is dependent on the reciprocal application of the treaty by the other party.61 This requirement, clearly, cannot apply to multilateral treaties, particularly to human rights treaties. However, only the constitution of Burundi explicitly limits the application of the rule of reciprocity to bilateral treaties.62 Article 42 of the constitution of the Republic of Congo is particularly problematic. It states:(p. 216)

Foreigners benefit, on the territory of the Republic of the Congo, from the same rights and freedoms as nationals within the conditions determined by the treaties and the laws, under reserve of reciprocity.

Such a provision could be used by the state as the basis for violating the rights of foreigners in retaliation for violations of its own nationals’ rights abroad.

While some constitutions, as noted above, state where a treaty stands in the legal hierarchy of norms, other constitutions that incorporate treaties as law are quiet on this issue. Article 144 of the constitution of Namibia incorporates treaties, but what transpires is only a weak monism. According to the Namibian Supreme Court:63

International agreements such as the Convention [on the Rights of the Child] appear to have similar force of law as accorded to legislation, in the absence of any constitutional provision or Act of Parliament contradicting the law or agreement in question.

Article 2(6) of the Kenyan constitution provides that: ‘[a]ny treaty or convention ratified by Kenya shall form part of the law of Kenya under this constitution’. This does not give any indication as to whether these norms should be seen as ordinary legislation or as higher norms that are only subject to the constitution. Kenyan courts have yet to settle this issue definitively.64

International treaties are sometimes incorporated verbatim into national law. Nigeria, for example, incorporated the ACHPR into national law. However, the role of the ACHPR in the national legal order is uncertain. For example, how can the non-justiciability of socio-economic rights under the Nigerian constitution be reconciled with the inclusion of socio-economic rights in the ACHPR?65 How does the fact that the chief justice issued international law-friendly Fundamental Rights Enforcement Procedure Rules affect constitutional litigation based on international law sources?66

The issue of the non-justiciability of human rights norms, recognized by the state at the international level, also exists for states that have not incorporated treaties in the national legal order. The African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights could view non-justiciability as an exemption from the requirement of the exhaustion of local remedies. Similarly, in West Africa, the broad jurisdiction of the ECOWAS Community Court of Justice could potentially push constitutional reform to provide for broader human rights jurisdiction of national courts, similar to what has happened in many European states in relation to the ECHR.67

(p. 217) Treaties and other international obligations may also be incorporated into legislation by reference, either by including substantively similar provisions as a treaty in national legislation or by citing a treaty or other international obligation in the preamble of legislation.68

3.2.1  Role of international law in constitutional adjudication

National legislation is to a large extent needed in both monist and dualist states to make international treaty norms effective.69 The monist structure of most African civil law states is, in reality, more of a fiction than anything else.70

Where constitutional litigation is possible, the role that international law can play varies. International law tends to play a more important role in constitutional adjudication in Anglophone states in Africa than in civil law jurisdictions. The constitutions of Ghana and Uganda provide that the human rights provisions in the bill of rights are not exhaustive.71 Such provisions could be used to incorporate rights not mentioned in the bill of rights, but which are recognized in international instruments.

Direct application of international law is rare and usually deals with treaties that have been incorporated into national legislation. For example, in April 2015 the Supreme Court of Uganda declared that the Amnesty Act was consistent with the Geneva Conventions Act as it did not provide for blanket amnesty for all crimes.72

Some constitutions provide that human rights in the bill of rights or legislation should be interpreted in accordance with human rights treaties or declarations.73 South Africa and Malawi have provisions to the effect that courts must consider international law in interpreting the bill of rights. Section 35 in the draft constitution of Zambia provided that a body (such as the Human Rights Commission or a court) in interpreting the bill of rights ‘may consider international law’. Considering that Zambian judges have generally dealt very conservatively with international law, it may be useful to have such a provision to point them to this body of law as a possible consideration. However, this provision was not included in the Constitution of Zambia Act 2016.

The South African constitution provides in section 233:

When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.74

(p. 218) The Constitutional Court noted in the Glenister case that there is ‘no escape from the manifest constitutional injunction to integrate, in a way the constitution permits, international law obligations into our domestic law’.75 However, as noted by the same court in the Florence case, this duty arises only ‘when international law is not irreconcilable with our own explicit law’.76

Interpretation in light of international law cannot mean only reliance on the treaty text. Such an approach would clearly not be of any significance as most bills of rights would already reflect these instruments. Article 48 of the constitution of the Seychelles goes much further, providing that:

The court shall, when interpreting the provision of this chapter, take judicial notice of:

  1. (a)  the international instruments containing these obligations;

  2. (b)  the reports and expression of views of bodies administering or enforcing these instruments;

  3. (c)  the reports, decisions or opinions of international and regional institutions administering or enforcing conventions on human rights and freedoms;

  4. (d)  the Constitutions of other democratic states or nations and decisions of the courts of the states or nations in respect of their constitutions.

Arguably, it is not only courts in the Seychelles that can go beyond the treaty text for interpretive guidance. The interpretation of treaties must be considered with adequate consideration of interpretations by authoritative bodies. What the International Court of Justice said in Diallo, with reference to the interpretation of the International Covenant on Civil and Political Rights (ICCPR) by the UN Human Rights Committee and the ACHPR by the African Commission, should also apply to national courts:77

Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty. The point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the states obliged to comply with treaty obligations are entitled.

Some national courts in African common law jurisdictions have used authoritative views by international treaty bodies to interpret constitutional provisions. Thus, the South African Constitutional Court in the Doctors for Life case, referring to the UN Human Rights Committee’s decision in Marshall v Canada, said:78

The precise nature and scope of the international law right to participate in the conduct of public affairs is a matter for individual states to determine through their laws and policies. Under article 25 of the ICCPR, states are to establish powers and the means by which individual citizens exercise the right to participate in the conduct of public affairs protected by article 25 in national constitutions and other laws. As the Human Rights Committee has explained, ‘it is for the legal and constitutional system of the state party to provide for the modalities of such participation’.

(p. 219) Further, the court quoted General Comment 25 of the UN Human Rights Committee:79

[W]hatever form of constitution or government is in force, the [ICCPR] requires states to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects.

In a recent Kenyan case, Eric Gitari v Non-governmental Organisations Coordination Board and Attorney-General, the High Court quoted extensively from the jurisprudence of the African Commission on Human and Peoples’ Rights in relation to freedom of association and also cited the UN Declaration on Human Rights Defenders to find that the non-registration of an NGO that promoted the rights of lesbian, gay, bisexual, transsexual, and intersex (LGBTI) persons was unconstitutional.80

A court does not need to follow the approach of, for example, a UN treaty-monitoring body. In the Catholic Commission case, the Zimbabwe Supreme Court held that detention for a prolonged period on death row constituted inhuman or degrading treatment. Justice Gubbay, writing for the Court, referred to two decisions of the Human Rights Committee against Jamaica, where the Committee held that the death row phenomenon in itself did not constitute inhumane or degrading treatment. Justice Gubbay aligned himself with the minority member on the Committee who had found it a violation.81 By contrast, the Botswana Court of Appeal referred to both the Zimbabwean case and the Human Rights Committee decisions and followed the approach of the majority of the Committee.82

The relevance of international law is recognized even in states with no provisions in their constitutions explicitly referring to international law. Thus, the Court of Appeal of Lesotho has noted that: ‘[w]here there is uncertainty as regards the terms of domestic legislation, a treaty becomes relevant, because there is a prima facie presumption that the legislature does not intend to act in breach of international law, including treaty obligations’.83 In addition to provisions of the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the ACHPR, the court went on to cite a General Comment of the UN Human Rights Committee and the Southern African Development Community (SADC) Declaration on Gender and Development in discussing affirmative action.

There are cases from other Anglophone jurisdictions, such as Malawi84 and Namibia,85 which cite recommendations and views of treaty-monitoring bodies as interpretive guidance. There are many other types of soft law, such as resolutions by international organizations, which can be used by national courts in their interpretation of the constitution and national legislation.

Cases such as those cited above remain an exception. When courts make reference to international law, it is mostly only to treaty texts, which often read the same as constitutional provisions. Courts rarely engage with the question of what constitutes relevant authority. The most important issue, however, is that the outcome of a case reflects a state’s international obligations. In this respect, the use of strong authority arguably makes a judgment more persuasive.

(p. 220) In the absence of a specific constitutional mandate to consider international law, informed counsel, making use of international law arguments, is probably the main incentive for a court to invoke international law in its reasoning.86 National judges may also feel pressure to consider international law because of alternative courts that apply international law, such as the ECOWAS Community Court of Justice in West Africa and the East African Court of Justice.87 The 2013 constitution of Zimbabwe provides that members of the judiciary ‘must keep themselves abreast of developments in domestic and international law’.88 Such a provision, it may be argued, mandates judges to consider international law in cases before them.

The discussion in this section has dealt with African common law jurisdictions. Civil law constitutional jurisprudence in Africa, in general, cites only the legal provision applied, be it the constitution, national legislation, or a treaty.89 Whether in common law or civil law states, the fact that something is not cited does not mean that it has not been considered. However, the extent of the influence of material that has not been cited would require empirical investigation, which is beyond the scope of this chapter.

4.  Democratic Legitimacy and Effectiveness of International (Human Rights) Law

Few courts in Africa would accept the argument put forward by the presiding officer of the Customary Court of Appeal before the High Court of Botswana that: ‘[m]uch as one might appreciate the fact that international law is against any form of discrimination, it is not always the case that such a position will be adopted by every state that has ratified the treaty or convention embodying such’.90 As noted above, non-discrimination is enshrined in all national bills of rights in Africa.91 The role of international law here is the same as the role of foreign law: to help the national court in its interpretation of what constitutes prohibited discrimination. To achieve this, the judge needs to move beyond the treaty text. However, the question raised here is whether the court, in doing so, would act undemocratically.

Is international human rights law democratic? Democratic legitimacy may be seen as following from parliament’s control over the ratification of international treaties in most states, and that such treaties are often explicitly referred to in constitutions that have been adopted by the people through referenda. Some constitutions even make it an obligation of the state to educate the population about international law. The Benin constitution imposes a duty to educate people about the constitution and international human rights instruments.92 Somalia’s constitution provides for training of security forces on the implementation of the international treaties to which Somalia is a party.93 Nonetheless, international human rights law remains controversial in many states.

(p. 221) Hall and Young note the following with regard to the 1990 Mozambican constitution:94

In the wave of euphoria that has followed the collapse of the Soviet bloc, accompanied by a largely thoughtless universalization of the language of ‘rights’, there seems little room for scepticism about the adoption by Third World countries of some variant of the Western liberal package.

They note that both the independence constitution and the 1990 constitution rely on ‘abstract concepts derived from political experience elsewhere; both are to be imposed on people by state power; both are rather remote from Mozambican realities on the ground (except perhaps establishment circles in Maputo)’.

As indicated above, international human rights law has a long history in Africa. However, the distance between the elite and the population is often significant. Rights related to the public sphere, such as freedom of expression, are often ignored, and rights related to the private sphere, such as many women’s rights, often remain controversial among major sections of the population. These rights exist but in practice lack meaning.

International human rights law aims to be transformative, but at the same time cannot neglect lived realities. Patriarchy should be challenged, but change cannot be immediate and imposed by state power; it must grow gradually from within through exposure and dialogue. No culture is static, but to try to impose change from above may be counterproductive. The international human rights movement still has a streak of the civilizing mission underlying the Bond of 1844.

Mali illustrates the limitation of imposing human rights norms derived from international law from above. Mali was seen as one of West Africa’s democratic success stories for two decades, until a recent military coup and secession attempt in the north of the country occurred.95 The independence constitution included a provision on the prohibition of discrimination on the grounds of gender. Mali ratified CEDAW in 1985, making it one of the first African states to ratify this important treaty aimed at gender equality. Mali did not make any reservation to the treaty. It presented its first state report to the CEDAW Committee in 1986 and its second report seventeen years later, in 2003. In 2000, Mali ratified the Optional Protocol to CEDAW. In its 2003 report to the CEDAW Committee, the government asserted that there was certain national legislation in violation of CEDAW, but that it had since 1998 engaged all sectors of Malian society to achieve ‘the widest possible consensus’ with regard to a revised family law abolishing discrimination.

The draft new family law was said to have been finalized and awaiting enactment. In its Concluding Observations, the CEDAW Committee noted that Article 116 of the constitution of Mali provided that a ratified treaty took precedence over national legislation.96 The Committee expressed its concern that, despite this, discriminatory legislation continued to be applied on issues such as the ‘transmission of nationality, marriage and family relations and access to land’.97 The Committee further urged the state to ‘view culture as a dynamic aspect of the country’s social fabric and life subject, therefore, to change’ and to take measures to alter discriminatory cultural practices.98 In January 2005, Mali ratified (p. 222) the Protocol to the African Charter on the Rights of Women in Africa, which provides for even more detailed protection of women against discrimination than CEDAW.

The revised family code was finally adopted by the Malian Parliament in 2009. However, the president, under pressure from conservative forces, refused to sign it into law. The bill was revised and the new family law adopted in 2011 is clearly discriminatory against women and girls in violation of Mali’s obligations under CEDAW and the Maputo Protocol.99 The question is whether constitutional adjudication could change the situation. Judge Dingake of the Botswana High Court noted in Mmusi100 that it is axiomatic that by ratifying the above international legal instruments, states parties commit themselves to modify the social and cultural patterns of conduct that adversely affect women through appropriate legislative, institutional and other measures, with a view to achieving the elimination of harmful cultural and traditional practices and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for women and men.

Although courts may interpret customary law in a manner that will reflect changes in social and cultural patterns, it is questionable whether litigation in itself can change discriminatory practices.

5.  Conclusion

In their 2002 study, Heyns and Viljoen note:101

The international system has had its greatest impact where treaty norms have been made part of domestic law more or less spontaneously (for example as part of constitutional and legislative reform), and not as a result of norm enforcement (through reporting, individual complaints or confidential inquiry procedures).

A 2012 study by the Centre for Human Rights, University of Pretoria, on the impact of the ACHPR and the Maputo Protocol in selected African states found that these two instruments were not widely known and that, while the rights recognized in these instruments are, to some extent, recognized in constitutional and legislative provisions, the interpretive guidance provided by the African Commission is very rarely referred to by courts.102

Most African states are quick to ratify international human rights treaties. The norms they espouse are often included in national constitutions and legislation. However, the lived reality of most Africans is very different from what is written in the constitution and national legislation. Anyone attempting to achieve change must assess what role litigation and what role international law can play in this strategy.

States do not only incorporate international human rights law through their national bills of rights or through national legislation. Some states incorporate international human rights treaties in their constitutions or incorporate a treaty into its national legislation. In some states, international treaties automatically become part of the law of the land. However, even where treaties form part of national law, courts, particularly those (p. 223) in civil law Africa, often avoid applying these treaties, relying instead on other national legislation.

Most common law states in Africa view international treaties as separate from national law. However, in many of these states, treaties still have an important role as interpretive guidance. This also applies to soft law, whether resolutions adopted by an international organization or interpretations by treaty-monitoring bodies, for example, general comments and guidelines, and the jurisprudence of international courts and quasi-judicial bodies. Informed counsel should play an important role in pushing for an interpretation of national law in a manner consistent with international human rights law. The importance of individual judges and international networking should also not be underestimated.

While the impact of international human rights law should generally be seen in a positive light, the issue of democratic legitimacy, to which the effectiveness of such law is linked, must also be considered. In most African states parliament is involved in the ratification of international treaties and, through the process of ratification (in democratic states), gives democratic legitimacy to the treaties. However, there are many undemocratic states and, even in many of Africa’s democracies, rights related to the public sphere are ignored when the interests of the elite are at stake. Rights related to the private sphere are often controversial among major sections of the population. Courts may intervene to develop customary law to be interpreted in light of international human rights law. However, litigation may often be ineffective in this context and education and other advocacy efforts may be more effective.

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  • Ibe S, ‘Implementing Economic, Social and Cultural Rights in Nigeria: Challenges and Opportunities’ (2010) 10 African Human Rights Law Journal 197

  • Kante B, ‘Models of Constitutional Jurisdiction in Francophone West Africa’ (2008) 3 Journal of Comparative Law 158

  • Keller H and Stone Sweet A (eds), A Europe of Rights (OUP 2008)(p. 224)

  • Killander M, ‘The Role of International Law in Human Rights Litigation in Africa’ in E Quansah and W Binchy (eds), The Judicial Protection of Human Rights in Botswana (Clarus 2009)

  • Killander M and Adjolohoun H, ‘International Law and Domestic Human Rights Litigation in Africa: An Introduction’ in M Killander (ed), International Law and Domestic Human Rights Litigation in Africa (PULP 2010)

  • Killander M, ‘How International Human Rights Law Influences Domestic Law in Africa’ (2013) 17 Law, Democracy and Development 378

  • Laibuta M, ‘The African Union and Kenya’s Constitution-building Process’ (International IDEA 2014)

  • Onoria H, ‘Uganda’ in D Shelton (ed), International Law and Domestic Legal Systems (OUP 2011)

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  • Sanni A, ‘Fundamental Rights Enforcement Procedure Rules, 2009 as a Tool for the Enforcement of the African Charter on Human and Peoples’ Rights in Nigeria: The Need for Far-reaching Reform’ (2011) 11 African Human Rights Law Journal 511

  • Smith Z K, ‘Mali’s Decade of Democracy’ (2001) 12(3) Journal of Democracy 73

  • Tanoh A and Adjolohoun H, ‘International Law and Human Rights Litigation in Côte d’Ivoire and Benin’ in M Killander (ed), International Law and Domestic Human Rights Litigation in Africa (PULP 2010)

  • United Nations ‘Constitution-making’ https://www.un.org/ruleoflaw/thematic-areas/governance/constitution-making/ (last accessed 17 April 2017)

  • Wanambisi L, ‘MP Wants Kenya’s Leaders Shielded from Any Trials’ Capital News (19 January 2015) http://www.capitalfm.co.ke/news/2015/01/mp-wants-kenyas-leaders-shielded-from-any-trials/ (last accessed 17 April 2017)

Footnotes:

1  United Nations, ‘Constitution-making’ https://www.un.org/ruleoflaw/thematic-areas/governance/constitution-making/ (last accessed 17 April 2017); Mugambi Laibuta, ‘The African Union and Kenya’s Constitution-building Process’ (International IDEA 2014). See also Zaid Al-Ali, ‘Constitutional Drafting and External Influence’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar Publishing 2011) 77.

2  For other aspects of internationalization of constitutional law see Charles M Fombad, ‘Internationalization of Constitutional Law and Constitutionalism in Africa’ (2012) 60 American Journal of Comparative Law 439. The focus in this chapter is on treaty law. A few states include specific references to customary international law in their constitutions (Angola art 13(1); Cape Verde art 11(1); Malawi s 211(3); Zimbabwe s 326). For constitutional provisions in this article see www.constituteproject.org (last accessed 17 April 2017). I have discussed some of the issues raised in this chapter in other works; see eg Magnus Killander, ‘The Role of International Law in Human Rights Litigation in Africa’ in Emmanuel K Quansah and William Binchy (eds), The Judicial Protection of Human Rights in Botswana (Clarus Press 2009); Magnus Killander and Horace Adjolohoun, ‘International Law and Domestic Human Rights Litigation in Africa: An Introduction’ in Magnus Killander (ed), International Law and Domestic Human Rights Litigation in Africa (Pretoria University Law Press 2010); Magnus Killander, ‘How International Human Rights Law Influences Domestic Law in Africa’ (2013) 17 Law, Democracy and Development 378.

3  Taslim Olawale Elias, Ghana and Sierra Leone: The Development of Their Laws and Constitutions (Stevens 1962) 17.

4  www.onliberia.org/con_1847.htm (last accessed 17 April 2017).

5  Joseph Calvitt Clarke III, ‘Seeking a Model for Modernization: Ethiopia’s Japanizers’ fch.fiu.edu/FCH-2002/Clarke-Seeking%20a%20Model%20for%20Modernization-2002.htm (last accessed 17 April 2017).

6  Some would view comparative foreign influence also as international; see K v K and Others (MAHGB-000291-14) [2015] BWHC 1 [178] (2 February 2015).

7  Christof Heyns, ‘African Human Rights Law and the European Convention’ (1995) 11 South African Journal on Human Rights 252. See also Charles Parkinson, Bills of Rights and Decolonization (OUP 2007).

8  Angola (2010); Burundi (2005); Central African Republic (2013); Comoros (2001); Democratic Republic of the Congo (DRC) (2005); Congo (2001); Côte d’Ivoire (2000); Egypt (2014); Guinea (2010); Kenya (2010); Libya (2011); Madagascar (2010); Morocco (2011); Mozambique (2004); Niger (2010); Rwanda (2003); Senegal (2001); Somalia (2012); South Sudan (2011); Sudan (2005); Swaziland (2005); Tunisia (2014); and Zimbabwe (2013).

9  See Laibuta (n 1) 19.

10  African Charter on Democracy, Elections and Governance art 44. However, see art 15(2) (independence of public institutions). See Fombad (n 2) for an extensive discussion of AU governance instruments and the internationalization of constitutional law.

11  Article 10(2).

12  Algeria art 28; Angola art 12; Burundi, preamble; Cameroon, preamble; Central African Republic, preamble; Comoros, preamble; Ghana art 40; Guinea preamble; Mozambique art 17; São Tomé and Principe art 12(2).

13  Angola art 12; Comoros, preamble (also Pact of the League of Arab States); Ghana art 40 (also the Commonwealth, ECOWAS, and other international organizations of which it is a member); Guinea, preamble (also ECOWAS); Mozambique art 17; São Tomé and Principe art 12(2).

14  Equatorial Guinea art 8.

15  DRC art 217; Congo art 182; Côte d’Ivoire art 122; Madagascar art 137; Senegal art 96.

16  Angola art 3(2).

17  ibid art 11(1).

18  ibid art 16.

19  ibid art 71(1); Somalia art 37.

20  Angola art 95(1).

21  ibid arts 203 and 210; South Africa s 200; Swaziland s 191.

22  Ethiopia art 2; Somalia art 7.

23  Gabon art 1(9); Morocco art 16.

24  Morocco art 11.

25  Ghana arts 40, 73; Nigeria s 19; Sierra Leone s 10; South Sudan art 43; Swaziland ss 61, 236; Zimbabwe s 12(1).

26  Guinea-Bissau art 27(2).

27  Rwanda art 20; Somalia art 13.

28  Rwanda art 28.

29  Somalia art 36.

30  ibid art 45(3).

31  South Africa s 198.

32  South Sudan art 157(7).

33  Laban Wanambisi, ‘MP Wants Kenya’s Leaders Shielded from Any Trials’ Capital News (19 January 2015) http://www.capitalfm.co.ke/news/2015/01/mp-wants-kenyas-leaders-shielded-from-any-trials/ (last accessed 17 April 2017).

34  Statute of the African Court of Justice and Human Rights, adopted by the AU Assembly (July 2014) art 46Abis.

35  http://www.worldstatesmen.org/Ethiopia_1931.txt (last accessed 17 April 2017).

36  See Elias (n 3) 51.

37  Libya (1951); Guinea (1958); Somalia (1960); Rwanda (1962); Nigeria (1963); vMalawi (1964); Senegal (1963); and Uganda (1963). For the text of the constitutions mentioned in this paragraph see Amos J Peaslee Constitutions of NationsVolume 1 Africa (3rd edn, Martinus Nijhoff 1965). For the text of the 1951 Libyan Constitution see http://www.libyanconstitutionalunion.net/constitution%20of%20libya.htm (last accessed 17 April 2017).

38  Burkina Faso (UDHR, ACHPR, and ‘international instruments concerning economic, political, social and cultural problems’); Burundi (UDHR, 1966 covenants, ACHPR); Cameroon (UDHR, ACHPR, and ‘all duly ratified international conventions relating thereto’); Central African Republic (UDHR, 1966 covenants, ACHPR, ‘all the international conventions duly ratified, in particular those relative to the prohibition of any discrimination against women and those relative to the protection of children’s rights’); Chad (UN Charter, UDHR, ACHPR); Comoros (UDHR, ACHPR, and the ‘international conventions, particularly those relation to children’s and women’s rights’); DRC (CRC and CEDAW and ‘international instruments concerning the protection and promotion of human rights’); Côte d’Ivoire (UDHR, ACHPR); Egypt (UDHR); Equatorial Guinea (UDHR); Gabon (UDHR, ACHPR); Guinea (UDHR, UN treaties, ACHPR, Maputo Protocol, ECOWAS Protocol on Democracy and Good Governance); Mali (UDHR, ACHPR); Mauritania (UDHR, ACHPR, and other ratified treaties); Niger (UDHR, 1966 covenants, ACHPR); Rwanda (UN Charter, Genocide Convention, UDHR, CERD, ICCPR, ICESCR, CEDAW, CRC, ACHPR); Senegal (international instruments adopted by the UN and AU, notably UDHR, CEDAW, CRC, ACHPR); Togo (UN Charter, UDHR, 1966 covenants, ACHPR).

39  São Tomé and Principe art 12(2) (UDHR).

40  It is still included in the preamble of the constitutions of Gabon and Senegal.

41  Articles 37(1), 169(4), and 193(2).

42  Benin preamble: ‘Reaffirm our attachment to the principles of democracy and human rights as they have been defined by the Charter of the United Nations of 1945 and the Universal Declaration of Human Rights of 1948, by the African Charter on Human and Peoples’ Rights adopted in 1981 by the Organization of African Unity and ratified by Benin on January 20, 1986 and whose provisions make up an integral part of this present Constitution and of Beninese law and have a value superior to the internal law’. The preamble of the Constitution of Cameroon includes the following affirmation: ‘Affirm our attachment to the fundamental freedoms enshrined in the Universal Declaration of Human Rights, the Charter of United Nations and the African Charter on Human and Peoples’ Rights’. Article 65 of the Constitution provides that: ‘[t]he Preamble shall be part and parcel of this Constitution’. However, arguably this provision does not incorporate the international instruments in the same way as the Benin provision.

43  Armand Tanoh and Horace Adjolohoun, ‘International Law and Human Rights Litigation in Côte d’Ivoire and Benin’ in Killander (ed), International Law and Domestic Human Rights Litigation in Africa (n 2) 116.

44  See eg with regard to Benin, Frédéric Joël Aivo, Le juge constitutionnel et l’état de droit en AfriqueL’exemple du modèle beninois (L’Harmattan 2006) 73–4.

45  John Dugard, ‘International Law and the South African Constitution’ (1997) 1 European Journal of International Law 77, 84.

46  Constitutional Principle II, Sch 4 of the interim constitution.

47  For a discussion of constitutional human rights provisions and how they relate to human rights see Christof Heyns and Waruguru Kaguongo, ‘Constitutional Human Rights Law in Africa’ (2006) 22 South African Journal on Human Rights 673.

48  ibid 678.

49  ibid 683.

50  Congo art 178; Eritrea art 32(4); The Gambia s 79(1); Ghana art 75; Libya art 17; Zimbabwe s 327.

51  Central African Republic art 96; Morocco art 55.

52  Algeria art 131.

53  Angola art 161; Chad art 219; DRC art 214, Côte d’Ivoire art 85; Djibouti art 62; Gabon art 114; Guinea art 149; Madagascar art 137; Mauritania art 78; Niger art 169; Rwanda art 189; Senegal art 96; and Tunisia art 67.

54  Benin art 7 (ACHPR); Burundi art 19 (UDHR, 1966 covenants, ACHPR, CEDAW, CRC); Congo (preamble, ‘the fundamental principles’ in the UN Charter, UDHR, ACHPR, ratified human rights treaties); Djibouti (UDHR, ACHPR); South Sudan art 9(3); Sudan art 27(3) (ratified human rights treaties); Togo (UDHR and ratified international instruments); Tanzania art 9 (UDHR).

55  Cape Verde art 11(4); Central African Republic art 97; Côte d’Ivoire art 87; DRC art 215; Mauritania art 80; Niger art 171; Rwanda art 190 (‘more binding than organic laws’); Senegal art 98; Tunisia art 20.

56  Ethiopia art 9(4); Mozambique art 18; Namibia art 144.

57  Angola art 13; Burkina Faso art 151; Central African Republic art 97; DRC art 215; Egypt art 93; Gabon art 114; Guinea art 150; Madagascar art 137; Mauritania art 80; Mozambique art 18; Niger art 171; Rwanda art 190; Senegal art 98.

58  Article 211. See also, with regard to Uganda, Henry Onoria, ‘Uganda’ in Dinah Shelton (ed), International Law and Domestic Legal Systems (OUP 2011) 594.

59  Mildred Mapingure v Minister of Home Affairs and Others, Civil Appeal 406/12, Judgment SC 22/14.

60  However, see Malawi s 135(a): ‘The Law Commission shall have the powers to review and make recommendations regarding any matter pertaining to the laws of Malawi and their conformity with this Constitution and applicable international law’.

61  Burkina Faso art 151; Congo art 184; Guinea art 151; Madagascar art 137; Mauritania art 80; Rwanda art 190; Senegal art 98.

62  Burundi art 292.

63  Thudinyane v Edward (SA 17/2005) [2012] NASC 22 [18] (12 October 2012).

64  See eg Zipporah Wangui Mathara [2010] eKLR (Civil Procedure Act declared unconstitutional to the extent inconsistent with the ICCPR); Diamond Trust Bank v Daniel Mwema Mulwa [2010] eKLR (ratified treaties at the same level as Acts of Parliament); Beatrice Wanjiku and Another v Attorney-General and Others [2012] eKLR (‘adopt the interpretation that most favours the enforcement of a right’ in the bill of rights even if this means disregarding the treaty provision).

65  Stanley Ibe, ‘Implementing Economic, Social and Cultural Rights in Nigeria: Challenges and Opportunities’ (2010) 10 African Human Rights Law Journal 197.

66  See Abiola Sanni, ‘Fundamental Rights Enforcement Procedure Rules, 2009, as a Tool for the Enforcement of the African Charter on Human and Peoples’ Rights in Nigeria: The Need for Far-reaching Reform’ (2011) 11 African Human Rights Law Journal 511.

67  Cf Helen Keller and Alec Stone Sweet, ‘Assessing the Impact of the ECHR on National Legal Systems’ in Helen Keller and Alec Stone Sweet (eds), A Europe of Rights (OUP 2008) 686. However, the number of repetitive cases from some states to the European Court illustrates that this system also has far to go before functioning ideally; cf Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, ‘The Effectiveness of the European Convention on Human Rights: the Brighton Declaration and beyond’ Doc 13719 (2015)

68  For examples of such legislation see Killander ‘How International Human Rights Law Influences Domestic Law in Africa’ (n 2) 388.

69  ibid 378. See also Babacar Kante, ‘Models of Constitutional Jurisdiction in Francophone West Africa’ (2008) 3 Journal of Comparative Law 158.

70  See Killander and Adjolohoun (n 2).

71  Ghana art 33(5) (‘the rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man’); Uganda art 45 (‘the rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned’).

72  Uganda v Thomas Kwoyelo, Supreme Court of Uganda, Constitutional Appeal No 1 of 2012, judgment of 8 April 2015, 65.

73  Angola art 26(2); Cape Verde art 16(3) (UDHR); Ethiopia art 13 (UDHR and ratified international instruments); Mozambique art 43; Malawi s 11(2) (‘where applicable have regard to current norms of public international law …’); Somalia art 40(2) (‘may consider … international law’); South Africa s39 (‘must consider international law’); Zimbabwe s 46(1).

74  See also Zimbabwe ss 326(2) and 327(6). These provisions reflect a common law principle of statutory interpretation; see Fombad (n 2).

75  Glenister v President of the Republic of South Africa and Others (CCT 48/10) [2011] ZACC 6 [202].

76  Florence v Government of the Republic of South Africa (CCT 127/13) [2014] ZACC 22; 2014 (6) SA 456 (CC); 2014 (10) BCLR 1137 (CC) [144] (26 August 2014).

77  Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), (Merits, Judgment) [2010] ICJ Rep 639 [66] http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=103&p3=4.

78  Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) [95] (17 August 2006).

79  ibid [131] (original emphasis by the Constitutional Court).

80  Petition 440 of 2013, High Court of Kenya at Nairobi, judgment of 24 April 2015.

81  Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General and Others (2001) AHRLR 248 (ZwSC 1993) [88]–[90].

82  Kobedi v The State (Criminal Appeal No 25 of 2001) [2003] BWCA 22 (19 March 2003).

83  Molefi v Independent Electronical Commission and Others (11/05 CC:135/05) [16].

84  Okeke v Minister of Home Affairs and Another (Civil Cause No 73 of 1997).

85  Alexander v Minister of Justice and Others (SA 32/2008) [2010] NASC 2 (9 April 2010).

86  See Killander and Adjolohoun (n 2).

87  These courts do not require the exhaustion of local remedies and therefore function as parallel jurisdictions to the national courts.

88  See s 165(7).

89  Centre for Human Rights, The Impact of the African Charter and Women’s Protocol in Selected African States (PULP 2012) 189; see Killander and Adjolohoun (n 2).

90  Mmusi and Others v Ramantele and The Presiding Officer, Customary Court of Appeal (MAHLB-000836-10) [2012] BWHC 125 [53] (12 October 2012).

91  Many independence constitutions included an exception to the non-discrimination clause in relation to customary law. Such exceptions have been removed in most post-1990 constitutions but still appear in older constitutions, such as Botswana’s constitution of 1966 and Lesotho’s 1993 constitution.

92  Benin art 40. See also Guinea art 25; DRC art 45.

93  Article 127(1). See also South Africa s 199(5).

94  Margaret Hall and Tom Young, ‘Recent Constitutional Developments in Mozambique’ (1991) 35 Journal of African Law 102, 114.

95  Zeric Kay Smith, ‘Mali’s Decade of Democracy’ (2001) 12(3) Journal of Democracy 73.

96  Concluding Observations, CEDAW/C/MLI/CO/5, [9].

97  ibid [11].

98  ibid [18].

100  See Mmusi (n 90) [187].

101  Christof Heyns and Frans Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level (Kluwer Law International 2002) 5.

102  Centre for Human Rights (n 89).