Some reflections on the importance of international law to a legal practitioner in Malawi

Disclaimer:

The views expressed in this article are the personal views of the author, and do not in any way or form represent the views or position of his employer(s). It has been shared here for academic purposes only.

1. Introduction

International law is an ancient field of law. Until recently, the practice of international law has been the province of specialists. However, its role has changed dramatically in the past few decades. Globalization has catapulted it to the centre stage. It is now the case that even a lawyer who intends to spend her life practicing law in her home country will find international issues impinging on her practice (Hoffman and Berring, 2017). It is for this reason that the author reflects on the importance of international law to a legal practitioner in Malawi, situating its significance through the lens of the Constitution of the Republic of Malawi, 1994 (hereinafter referred to as the Constitution) and some jurisprudential approaches. However, this article will not delve into the question whether international law is law, nor will it deal with issues concerning the hierarchical placement of international law vis-à-vis other sources of domestic law.

2. International law has central constitutional recognition

The Constitution begins with a provision that recognizes some important concepts in international law namely; statehood and sovereignty. It also specifically refers to the “Law of Nations”, a term traceable to Roman law, jus gentium. The "Law of Nations" is synonymous to international law (Westlake, 1904; Oppenheim, 1920; Brierly, 1963, Law, 2022). From the outset, therefore, the Constitution recognizes Malawi as a “sovereign State with rights and obligations under” international law (see Chimimba, 2012).

The significance of section 1 of the Constitution has been distinctly recognized most recently by the High Court of Malawi (the High Court) in the matter of a request by the government of the Republic of South Africa to the government of the Republic of Malawi for the extradition of Mr Shepherd Bushiri and Mrs Mary Bushiri (Criminal Review 11 of 2021) [2022] MWHC 73 (8 February 2022) (hereinafter referred to as the Bushiri Case). In this case, Kapindu, J. stated as follows:

“[104] Section 1 of the Constitution expresses two fundamental concepts relating to Malawi’s statehood. The first concept that it brings out is that of Malawi’s sovereignty. It reminds the reader that our country is sovereign and that, guided by the Constitution, it will deal with all other actors on the international plane on that footing. As much as the section itself is a domestic law provision, it says to the rest of the world that under Malawi’s democratic constitutional dispensation, those authorities to whom the Malawian people have delegated the responsibility of representing them, are bound in their conduct by this stricture of our supreme law.” (Emphasis added)

Kapindu, J. goes on to pronounce as follows:

“Secondly, Section 1 of the Constitution also expresses that, as a sovereign State at international law; Malawi has rights and obligations on the international plane which it is entitled to vindicate, in the case of rights, and to honour in the case of its international obligations.” (Emphasis added)

In as much as Kapindu, J's dictum on section 1 of the Constitution is certainly not the first by Malawi courts, it is one of the most elaborate, as we will observe later. It is a key acknowledgement by the High Court of the important implications of this provision of the Constitution. Moreover, the Constitution does not stop there. It goes on to prescribe “current norms of public international law” as one of the guides to the interpretation of the Constitution by courts of law ?(section 11 (2) (c)), in a manner that reflects “the unique character and supreme status” of the Constitution (section 11 (1)).

This is an important consideration. Whenever an interpretation (and possibly application) of the Constitution is before a court of law in Malawi, current norms of public international law may form an important source of influence to the court’s determination. Understandably, one could conclude that questions of the constitutionality of other Acts of Parliament, and other sources of law in general, would be subjected to some analysis of consistency with current norms of public international law. The importance of "norms of public international law" in constitutional interpretation, among other considerations, was also emphasized in Dr Saulos Klaus Chilima and Dr Lazarus McCarthy Chakwera v Professor Arthur Peter Muntharika, The Electoral Commission (Constitutional Reference 1 of 2019 para. 1445)

Therefore, it is imperative for the legal practitioner in Malawi to be cognizant of international law, even for purposes of constitutional interpretation. Moreover, the High Court in the Bushiri case, with no particular reference to section 11 of the Constitution, also mentioned that “when Courts are interpreting provisions under domestic law in view of applicable international law norms, they must also be mindful that the customary international law principle of pacta sunt servanda, that Malawi must honour its international agreements in good faith, is part of our domestic law under section 211(3) of the Constitution.”

This conveniently takes us to section 211 of the Constitution. For our purposes, it is imperative that the provision be reproduced here in full. Section 211 states as follows:

1.???? Any international agreement entered into after the commencement of this Constitution shall form part of the law of the Republic if so provided by an Act of Parliament.

2.???? Binding international agreements entered into before the commencement of this Constitution shall continue to bind the Republic unless otherwise provided by an Act of Parliament.

3.???? Customary international law, unless inconsistent with this Constitution or an Act of Parliament, shall form part of the law of the Republic.

The marginal note to this provision reads “international law”. Subsection 1 of this provision tells us that Malawi is, in terms of how treaties joined after the enactment of the Constitution obtain the force of law in Malawi, a dualist State (read with sections 89(1) (f) and 96 (1)(f)). That is to say, after the executive branch of government signs, ratifies, accedes or otherwise expresses its consent to be bound by an international agreement, such international agreement will only have the force of law in Malawi if it is domesticated through an Act of Parliament. This is treaty law, a source of international law distinct from what subsection 3 refers to as customary international law (although at times treaties codify customary international law). Customary international law which might be called the "common law" of the law of nations (Law, 2022), is by virtue of subsection 3 part of the Laws of Malawi.

Section 211 (2) of the Constitution continues the application of international agreements that were binding on Malawi before the commencement of the Constitution. The binding nature of those pre-1994 Constitution international agreements remains unless denounced by an Act of Parliament. Be that as it may, whether an international agreement has been domesticated or denounced, the customary international law principle of pacta sunt servanda has a probable overriding effect of giving force to such international agreements. In this regard, Kapindu J stated as follows:

"[109]As seen above, under section 211(3) of the Constitution, customary international law, unless inconsistent with the Constitution or an Act of Parliament, forms part of the law of the Republic. Thus, the principle that Malawi must fulfil its international obligations in good faith, being a rule of customary international law, forms part of Malawian law under the Constitution, and the court is unaware of any law in our jurisdiction which runs counter to the principle of pacta sunt servanda." (the Bushiri Case)

This means that, regardless of whether Malawi has domesticated an international agreement or not, so long as it has signed, ratified, acceded or otherwise joined such agreement, it is incumbent upon it to not act in contravention of such an agreement. Article 27 of the Vienna Convention on the Law of Treaties (to which Malawi is a Party) states in part that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This Article has been referred to as the corollary of the principle of pacta sunt servanda discussed above. It strengthens this principle by requiring that States must enact legislation that is compatible or brought in line with their international obligations (Villinger, 2009). In the author's view, this strengthens the need for the Malawian legal practitioner to be versed in international law.

2.1. Inconsistent approaches by courts in Malawi

At this stage, it must be highlighted that the aforementioned understanding of the applicability of international law in light of the relevant provisions of the Constitution, has not always been understood in the manner enunciated in the Bushiri case by courts in Malawi. For instance, in the case of Nyirenda and CDEDI v Ministry of the Malawi Government responsible for Health and Others (Judicial Review Cause 66 of 2021) [2022] MWHC 6 (13 January 2022) (hereinafter referred to as Nyirenda), Kenyatta Nyirenda, J., in declining that Article 9 of the UN Declaration on Human Rights Defenders (the UN Declaration) could be applied as a basis for finding locus standi stated as follows:

"52. It is obvious that in the context of our national legal system there is a difference in the legal status of an international agreement that forms part of the law of the Malawi (sic) and the legal status of an international agreement that is not part of the law of the Malawi (sic). For starters, while a Malawian court is bound to apply the laws of Malawi, it is not compelled to apply an international agreement that does not form part of the law of the Malawi (sic). The court may only have regard to such an agreement, where applicable.

53. Article 9, being an international agreement, would fall under section 211(1) of the Constitution. Unfortunately, the Applicants have not adduced any evidence to show that Article 9 meets the requirements of section 211 (a) (sic) of the Constitution."

Although we agree with the learned court's decision not to accept the applicability of Article 9 of the UN Declaration as a basis for locus standi, we, however, respectfully disagree with the reasoning. Firstly, the court erroneously considered the UN Declaration as an international legally binding instrument, when in fact, it has no legally binding force. Secondly, even if the UN Declaration were a legally binding instrument that Malawi had signed and ratified without domestication, the court in Nyirenda, unlike in the Bushiri case, did not consider the customary international law principle of pacta sunt servanda, and its implications on the conduct of the State vis-a-vis its international law obligations assumed prior to the enactment of an Act of Parliament that domesticates an international agreement. In addition, the court did not consider the obligation under Article 27 of the Vienna Convention on the Law of Treaties as discussed above.

In another instance, Mwaungulu, JA, delivering the majority judgment in S (ex parte Aero Plastic Industries Ltd) v Director of environmental affairs (MSCA Civil Appeal 19 of 2019) [2019] MWSC 13 (31 July 2019) (hereinafter referred to as the Aero Plastic Industries's case), also made important comments on the applicability of international law (mainly treaty law) in Malawi in the same tenor of the sentiments of Kenyatta Nyirenda, J, mentioned above. The incorrectness in the approach by the Malawi Supreme Court of Appeal (MSCA) in this case is two-fold. Firstly, the Court fell short of unpacking the contents of "current norms of public international law" under section 11 (2) (c) and its relationship with section 211 (3) of the Constitution. The Court in introducing the matter before it, emphasized that, "[L]egislation - except for subsidiary legislation- is only subservient to the Constitution and can, therefore only be reviewed for constitutionality not reasonableness or for compliance with international instruments- which are subservient to the Constitution." It is submitted that a sober reading and understanding of section 211 (3) read with section 11(2) (c) of the Constitution would lead to the sentiments of the court in the Bushiri case, namely that, "when Courts are interpreting provisions under domestic law in view of applicable international law norms, they must also be mindful that the customary international law principle of pacta sunt servanda, that Malawi must honour its international agreements in good faith, is part of our domestic law under section 211(3) of the Constitution."

Secondly, the Court in the Aero Plastic Industries's case erroneously portrayed that international law (treaty law) could not prescribe detailed norms on environmental protection beyond the general principles contained in treaties it considered imposed environmental protection obligations on Malawi at that time. Mwaungulu JA, stated as follows:

"An international treaty, convention or agreement cannot, without compromising the sovereignty of a member State to make laws, cover the minutia and detail of environmental law." (page 36)

Treaties can, and in many instances do contain detail of the subject matter covered. In so doing, treaties do not usurp the sovereignty of States to enact national legislation on those subjects. For example, treaties that create international criminal offenses are prescriptive of the elements of those offenses, and do not leave it to States to proffer their own unique definitions of those crimes in their national laws. This is why, States must express "consent" to be bound by treaties, and once they do, they may not use their internal law as a shield from implementing their international obligations. In fact, they have a positive duty to enact legislation that align with the obligations that they consent to by joining international agreements. Even where Malawi does not domesticate these international treaties, the principle of pacta sunt servanda, which is by virtue of Section 211 (3) a domestic law principle, stops Malawi from acting contrary to such agreements.

The inconsistencies in approaches by courts in Malawi on the application of treaties that have not been domesticated is, however, not a new challenge. In the 2000s, there were a number of judgments that portray the divergence of approaches. In In the Matter of the Adoption of the Children Act (Cap 26:01) and in the Matter of David Banda (A Male Infant), Adoption Cause No 2 of 2006, the High Court stated that it was necessary to interpret domestic law in compliance with the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child ratified by Malawi in 1991 and 1999, respectively. It was indicated that these "Conventions are binding on Malawi by choice", and that since Malawi had "consciously and decidedly undertaken the obligations dictated by these Convention", she accordingly, had a "solemn duty to comply with the provisions of the Conventions". The court went on to state that "[i]f for a moment the argument that the Conventions are not part of our law found favour, then at least on part of the Court the duty is to interpret and apply our statutory law, so far as the spirit of the statute could allow, so that it is in conformity and not in conflict with our established obligation under these Conventions."

About a year later, in In the Matter of the Adoption of the Children (Cap 26:01) and in the Matter of CJ (A Female Infant), MSCA Adoption Appeal No 28 of 2009)(hereinafter referred to as the CJ case), the MSCA in a similar matter, stated that "whether an international agreement forms part of our law, regardless of when it was entered into, will depend on whether there is no Act of Parliament that provides to the contrary." (emphasis added). Chief Justice Munlo, JA (as he then was), went on to say that "[i]f the executive branch of Government wishes any of the international conventions which it has freely acceded to, to have the force of law, then it should bring such convention before parliament which has the Constitutional mandate to make all laws of this land".

Interestingly, two years prior to the CJ case, the MSCA in Malawi Telecommunications Ltd v Makande & Omar, MSCA Civil Appeal No 2 of 2006 had a slightly different tone on the matter. In considering the application of the ILO Convention No 158 to Malawi, the court held that since there was no obligation on Malawi to domesticate international agreements prior to the 1994 Constitution, and prior to the amendment of section 211 (2) of the Constitution in 2001, the Convention was applicable to Malawi. Prior to this case, the High Court held concerning the same Convention, that it found nothing in section 211 of the Constitution requiring that international agreements ratified before the commencement of the Constitution be domesticated by an Act of Parliament before they could be considered binding (Kalinda v Limbe Leaf Tobacco Limited, Civil Appeal No 542 of 2006).

By and large, whichever perspective one holds, the inconsistencies in themselves, emphasize the point that it is imperative for the lawyer to seek to understand the important role international law plays in handling of different legal questions.

2.2. Other constitutional provisions that give international law some prominence

International law is also recognized as instrumental in other aspects under the Constitution. As one of the principles of national policy that the State should aim at achieving, section 13 (k) (International Relations) obliges the State to adopt and implement policies and legislation "to govern in accordance with the law of nations and the rule of law and actively support the further development thereof in regional and international affairs." (emphasis added)

In terms of restrictions and limitations on the Bill of Rights under Chapter IV of the Constitution, section 44(1) permits only such restrictions or limitations which are "recognized by international human rights standards", in addition to other considerations. This, therefore, requires the courts to examine the prevailing position in international law in deciding whether or not to uphold the limitation (Kapindu, 2014).

In the case of a state of emergency, the State may only derogate from the rights prescribed in Chapter IV of the Constitution, except in respect of a few rights listed under section 45(2) of the Constitution, if such derogation is "consistent with the obligations of Malawi under international law" (section 45 (4) (a)) (emphasis added).

Further, the Law Commission, which is established and empowered under section 132 of the Constitution to review and make recommendations relating to the repeal and amendment of laws of Malawi, must do so in keeping with the Constitution and "applicable international law." (see section 135(a) of the Constitution). Thus, the Constitution situates international law in some place of unique prominence, which, in the author's view, is a factor that should not be ignored by any lawyer practicing law in Malawi.

3. Globalization as a catalyst for the prominence of international law

Apart from the recognition conferred upon it by the Constitution, international law gains prominence through the globalization phenomenon. Globalization which brings with it increased trade and interactions between and among States and private actors, has, in various phases of its history, served as a catalyst for the emergence, spread and reinforcement of international law, even as the phenomenon challenged international law and ultimately forced it to reinvent itself after periods of crisis (Me?gret, 2009).

Although globalization and international law are separate matters, the rise of globalization does influence the conduct of States. For example, States conclude more treaties to enhance and facilitate smoother interactions between their private actors. The Agreement establishing the African Continental Free Trade Area, for instance, was negotiated with the view to increase the competitiveness of products from African States on the global market. Many other international agreements have been concluded to address matters that are directly or indirectly related to globalization. Hence, the increase in the movement of people, technology, and trade between and among States, necessitates the development of new norms that fall into the category of international law. As a result, one need not be a specialized international law practitioner to interact with international law. Private law practitioners must, ever so often, deal with cases involving contracts with foreign elements, which touch on either public international law, private international law, or a blend of various typologies of international law. Increasingly, disputes between private individuals are being settled through international courts or tribunals. Investment disputes, are a good example. These dispute settlement forums use rules, norms or practices that ordinarily form the corpus of international law.

4. Conclusion

This short article has explored some points that highlight the importance of international law to a legal practitioner in Malawi. The main significance of this body of law emanates from the Constitution, the supreme law of Malawi. This importance is galvanized by the phenomenon of globalization, a concept which, in its economic manifestation, seems to be irreversible, which "forces" or compels the development of norms that form part of the corpus of international law. This makes the practice, or the bare minimum of some knowledge of international law, a prerequisite for the successful practice of a legal practitioner in Malawi. If the lawyer is to competently discharge her duty to her clients as required by the Code of Ethics, the author forms the view that it is imperative for her to engage with some international law scholarship.

From the case law referred to in this paper, the author forms the view that once the legal practitioner is versed to some extent in the general tenets of international law, she will be in a better position to give legal advice and make sound legal arguments before the court, which could contribute to good jurisprudence on the subject. As it stands, the jurisprudence could use some consistency.

References

1. The Constitution of the Republic of Malawi, 1994
2. S (ex parte Aero Plastic Industries Ltd) v Director of environmental affairs (MSCA Civil Appeal 19 of 2019) [2019] MWSC 13 (31 July 2019)
3. In the Matter of the Adoption of the Children (Cap 26:01) and in the Matter of CJ (A Female Infant) MSCA Adoption Appeal No 28 of 2009)
4. Malawi Telecommunications Ltd v Makande & Omar, MSCA Civil Appeal No 2 of 2006
5. In the matter of a request by the government of the Republic of South Africa to the government of the Republic of Malawi for the extradition of Mr Shepherd Bushiri and Mrs Mary Bushiri (Criminal Review 11 of 2021) [2022] MWHC 73 (8 February 2022);
6. Nyirenda and CDEDI v. Ministry of Health and Others (Judicial Review Cause 66 of 2021) [2022] MWHC 10 (13 January 2022);
7. Kalinda v Limbe Leaf Tobacco Limited, Civil Appeal No 542 of 2006
8. In the Matter of the Adoption of the Children Act (Cap 26:01) and in the Matter of David Banda (A Male Infant), Adoption Cause No 2 of 2006
9. Kalinda v Limbe Leaf Tobacco Limited, Civil Appeal No 542 of 2006
10. Dr Saulos Klaus Chilima and Dr Lazarus McCarthy Chakwera v Professor Arthur Peter Muntharika, The Electoral Commission (Constitutional Reference 1 of 2019)
11. The Vienna Convention on the Law of Treaties, 1969
12. James Leslie Brierly, The Law of Nations: An Introduction to the Law of Peace, ed. Sir Humphrey Waldock (1963, 6th Ed, Oxford: Clarendon Press), p.1.
13. John Westlake, International Law, vol. I, (1904, Cambridge University Press), p.1.
14. Jonathan Law, A Dictionary of Law, (2022, Oxford University Press)
15. Marci Hoffman and Robert Berring, International Legal Research in a Nutshell, (2017, West Academic Publishing)
16. Mark E. Villinger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009, Koninklijke Brill NV)
17. Dr Redson E. Kapindu J, "The Relevance of International Law in Judicial Decision-Making in Malawi", in Southern Africa Litigation Centre, Judiciary of Malawi, National Association of Women Judges and Magistrates of Botswana (NAWABO), "Using the Courts to Protect Vulnerable People: Perspectives from the Judiciary and Legal Profession in Botswana, Malawi, and Zambia", (2014, Southern Africa Litigation Centre) pp. 74-84
18. Frédéric Mégret, Globalization and International Law (August 4, 2008). MAX PLANCK ENCYCLOPEDIA OF INTERNATIONAL LAW, Oxford University Press, 2009, Available at SSRN: https://ssrn.com/abstract=1200782 or https://dx.doi.org/10.2139/ssrn.1200782
19. L. Oppenheim and Ronald Roxburg, International Law: A Treatise, vol. I (1920, London: Longmans), p.1.
20. Trevor P. Chimimba, The Search for Identity and Legitimacy: The Evolution of Malawi's Constitution," (2012) 6(1) Malawi Law Journal, p. 60
21. Frédéric Mégret, Globalization and International Law (August 4, 2008). MAX PLANCK ENCYCLOPEDIA OF INTERNATIONAL LAW, Oxford University Press, 2009, Available at SSRN: https://ssrn.com/abstract=1200782 or https://dx.doi.org/10.2139/ssrn.1200782

Interesting obiter dictum:

"238. To put this into better perspective, it needs to be appreciated that public international law is not a body of foreign law. Foreign law refers to the law of another country as a separate jurisdiction. For instance, the law of Tanzania is foreign law. But the International Covenant on Civil and Political Rights, 1966 is not foreign law. In other words, it is not a body of law outside Malawi. Public international law is a sui generis corpus of law which applies to States in various ways." quote in S( On application of Kezzie Msukwa) and Ashok Nair v Director of The Anti-Corruption Bureau (Judicial Review 54 of 2021) [2022] MWHC 63 (30 May 2022)

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