sexual health and human rights in the african region - The ICHRP

1.5 African Regional Human Rights Systems
[6] To understand the scope as well as limitations of the development of
jurisprudence that impacts on sexual health in the African region, it is useful to
have a sense of the place of regional human rights jurisprudence. This is because,
all things being equal, in terms of hierarchy of laws, human rights law that is
derived from international treaties is ordinarily at the top of the hierarchy.
National constitutions form the second layer and they are followed by laws
made by legislatures and decisions of courts. Customary law and religious law
ordinarily form the lowest layer of jurisprudence. But of course, these are
generalizations. In practice, domestic constitutions prevail over international
law. 5 Furthermore, the exact status of customary law or religious law depends on
the domestic legal and political cultures and traditions of the individual
jurisdiction.
[7] It bears stressing that there is no common or even consistent regional
constitutional tradition on the incorporation of international law into domestic
law. The constitutions of some African countries follow a monistic approach and
treat ratified treaties as domestic law which has a higher status than other
domestic laws. 6 Cameroon falls into this group. 7 Other African constitutions
adopt a dualistic approach and require the ratified treaty to be specifically
incorporated into domestic law before it can acquire the status of domestic law.
This is generally the position in the former British colonies that form the larger
part of the sample. 8 Others, yet still, follow a hybrid approach and South Africa
is a leading example. 9 It also serves well to note that though the labels of
monism and dualism are useful for classifying provisions in constitutions that
address the relationship between international law and domestic law, they have
5 Viljoen International Human Rights Law in Africa, supra at 529-567.
6 This is generally the tradition in Francophone countries. Francophone countries have been historically
influenced by article 53 of the Constitution of France of 1958 which provides that treaties that have been
duly ratified prevail over Acts of Parliament. Examples of provisions of constitutions of Francophone
countries following this approach include: article 292 of the Constitution of Burundi; article 292 of the
Constitution of Cameroon; and article 132 of the Constitution of Niger. Note that in some Francophone
jurisdictions, monism is recognized in the preamble to the constitution in addition to, or in place of,
recognition in the substantive provisions of the constitution. See for examples preambles to the
constitutions of: Burkina Faso (1991); Chad (1996); Guinea (1990); Niger (1991); Mali (1992); and Togo
(1992).
7 Ibid.
8 This is generally the tradition in Anglophone countries or Commonwealth Africa. See for example
section 211(1) of the Constitution of Malawi and section 111B of the Constitution of Zimbabwe of 1979 as
amended.
9 South Africa is an example of a jurisdiction that follows a hybrid approach. Section 231(2) of the
Constitution provides that ratified treaties are binding on South Africa. At the same time, section 231(4)
of the South African Constitution provides that an international agreement becomes domestic law in
South Africa only when it is enacted by domestic legislation, save in the case of a self-executing provision
of an agreement.
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