REFERRALS TO THE INTERNATIONAL CRIMINAL COURT THE UGANDA CASE AFRICA

The last 20 years have seen the fast paced evolution of international criminal justice.

The creation of the two ad hoc tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) was followed by the establishment of the International Criminal Court (ICC) which aspires to global reach. The ICC was the dream of yesterday but a reality of today.

The idea of a permanent criminal court was on the international agenda for much of the last century. Now that it is a reality there are certain challenges it faces.

The Statute of the ICC, also known as the Rome Statute (the Statute), entered into force on 1st July, 2002, and established a permanent, independent Court to investigate and bring to justice individuals who commit war crimes, crimes against humanity, and genocide. The ICCs jurisdiction extends over crimes committed since the entry into force of the Statute. The ICC is headquartered in The Hague, Netherlands. As of March 2010, 111 countries were parties to the ICC Statute.

The ICC began operating at its inauguration on March 11, 2003. The Statute also established a second independent institution, the Trust Fund for Victims, to help victims of these crimes. The Trust Fund for Victims can only act in situations where the ICC has jurisdiction.

According to Blacks Law dictionary to refer means to send a motion to a committee for its consideration or investigation, with a view to a report from the committee back to the referring body. Referral on the other hand means the act or an instance of sending or directing to another for information, service, consideration, or decision.

In the language of the Rome Statute of the ICC it means triggering the ICC jurisdiction over a situation by a state party to the statute.

As outlined in the ICC Statute situations may be referred to the ICC in one of three ways; by a state party to the Statute, the ICC prosecutor or The United Nations (UN) Security Council.

Currently four situations have been referred to the Prosecutor. The governments of three countries (all parties to the ICC)-Uganda, the Democratic Republic of Congo, and the Central African Republic- have referred situations to the prosecutor. The UN Security Council has referred one situation (Dafur, Sudan) to the prosecutor. One situation (Kenya) followed an application by the prosecutor.

States parties adopted amendments to the Rome Statute that define and determine ICC jurisdiction over the crimes of aggression at the Review Conference of the Rome Statute that took place in Kampala, Uganda, from May 31 to June 11, 2010. Under the amendments, the ICC may not take jurisdiction over aggression crimes until at least January 2017, and only if states parties vote to activate such jurisdiction at that time.

Article 34 of the Rome Statute provides that the court shall be composed of the following organs: the presidency, an Appeals Division, a Trial division, a Pre-Trial Division, the Office of the Prosecutor and the Registry.

The armed conflict in northern Uganda began in 1986, soon after Yoweri Museveni took power and became President of Uganda, a position that he continues to hold more than 20 years later. The LRA a rebel group under the leadership of Joseph Kony began fighting the Museveni government and the Uganda Peoples Defence Forces (UPDF), the country's new loyal army to Museveni.

The conflict was rooted in deep ethnic competition between populations in the North and in the South of Uganda over military and economic power going back as far as colonial rule. For over 26years the LRA led by Joseph Kony fought against the Uganda Government and the Acholi people of Northern Uganda.

The LRA became infamous for abducting Children, who were subsequently used as child soldiers and sex slaves and many people were displaced. After more than 20years of instability and war, the Acholi people were more than ready to make peace with the rebels, at almost any cost.

In 2003, Ugandan president Museveni referred the situation concerning the Lords Resistance Army to the ICC in The Hague. The court after investigations issued arrest warrants for five of the most notorious leaders of the LRA. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen who were all charged with Crimes against Humanity and war crimes. Two of these men have been said to be dead but only Raska Lukwiyas death has been confirmed and thus his warrant of arrest has been rendered without effect and his name has been removed from the case. However, Vincent Otti's death has not been confirmed.

The ICC arrest warrants have removed the LRA commands incentive to come out of the bush, which has made peace talks difficult, if not impossible.

A woman in an internally displaced camp is said to have asked;

Kony will not come out because of the ICC, so to whom should we attribute our suffering?

It is obvious nobody can convince the leaders of the rebel movement to come to the negotiating table and at the same time tell them that they will appear in courts to be prosecuted.

Therefore the question arises can Uganda withdraw the referral?

The LRA leadership is made up of Acholi (a people in Northern Uganda). The LRA fights against the government which has its power base in southern Uganda causing many northerners to feel disempowered.

The issue however, is not purely tribal; most victims of the LRA atrocities are from the same Northern Acholi people as the LRA leadership. The LRA is not motivated by any clearly identifiable political agenda, making peace negotiations more difficult.

One noteworthy element of the conflict is the fact that the LRA leader Joseph Kony portrays himself as a medium with direct contact with various spirits which guide his actions.

The conflict seriously blemished the record of Musevenis government. Attempts to end the conflict through peace negotiations did not yield any results.

In 2000, the Uganda Legislature passed the Amnesty Act, offering amnesty for all Ugandans involved in acts of war-like nature, who voluntarily came forward and abandoned their activities. Unfortunately the Amnesty Act failed to end the conflict even though a considerable number of LRA fighters eventually abandoned the conflict.

When President Museveni announced that Kony and other LRA leaders would be left unpunished if they abandoned terrorism, this statement was interpreted to mean that President Museveni intended to withdraw the Ugandan referral of the situation to the ICC.

Thissparked off a debate and there are arguments both for the withdrawal and those against the possibility of withdrawal.

The debate, arguing in a broader international context, seems to be in favour of the possibility of withdrawal of the situation referred to the ICC.

Zachary A. Lomo in his article Why the ICC must withdraw indictments against the top LRA leaders alludes to the argument that a state in international law can be relieved of its obligations if grave circumstances occur that render it practically impossible for it to implement the obligations it assumed under a particular treaty

He argues that the ICC is a threat to the independence and sovereignty of peoples and democratic processes and Uganda should withdraw from the Rome Statute. However in my view this appears to be a drastic remedy where a matter was actually referred by the complaining state.

In Zacharys view the people want justice but not all the people want trial justice and trial justice is selective and will not always act as a deterrent for future crimes. That justice must not only be understood from the perspective of trials by the ICC alone. There are other ways through which justice may be done so to tout trials as a magical panacea is intellectually dishonest. 

Zachary therefore advances various arguments in favour of state withdrawal of a matter it referred to the ICC if it wishes to explore alternative justice systems.

The first argument is that Article 1(1) of the United Nations Charter (UN Charter) enjoins member states to take effective collective measures for the prevention and removal of threats to the peace and bring about by peaceful means, and in conformity to the principles of justice and international law, adjustments or settlements of international disputes which might lead to the breach of peace.

The cardinal principle here is that peaceful means must be used to remove threats to the peace such as international conflict or internal conflict. Therefore for the purposes of ending the conflict in peaceful means the ICC should allow Uganda to withdraw the matter of the LRA leaders to facilitate the peace process.

The other argument is on sovereignty and self determination of the peoples. UN Charter enshrines these two fundamental principles both of which are very relevant to the question whether a state may withdraw a referral it made to the ICC.

Under these principles Uganda and its people as a sovereign are entitled to pursue peaceful means to resolving the conflict and promoting national reconciliation and justice in the context of their own situation. So withdrawal of the referral should be allowed by the ICC
The principle of sovereignty if interpreted in the present context implies that the ICC Statute cannot be sovereign to the national laws of any member state.

This is the principle captured by the principle of complementarity enshrined in the Rome Statute. It emphasizes that the jurisdiction of the ICC is aimed at complementing, and not replacing the domestic criminal justice system.

The same principle is further re-enforced by Article 17 of the Rome Statute which bars the ICC from prosecuting an individual unless the state concerned is either unable or unwilling to carry out prosecution. The principle of complementarity therefore serves to reaffirm in the Rome Statute that sovereignty of the state must be respected in so far as criminal justice is concerned.

The real essence of state sovereignty is for a state to provide security for its citizens. In that respect, Uganda as a sovereign is entitled to seek solutions by peaceful means that bring lasting peace and security to its citizens. Even if Uganda referred the situation in the North to the ICC it does not surrender its residual authority to determine the best approach to handling the situation in Northern Uganda that will maximize security for its citizens. As such any state, in the circumstances as Uganda is, should be allowed to withdraw the matter from the ICC.

Furthermore Article 1(2) of the UN Charter provides for self determination. This encapsulates states among other things to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples and to take other appropriate measures to strengthen universal peace.

Crucially, however, the right to self determination does not simply relate to the secession of ethnic minorities from the mainstream body politic and the establishment of new sovereign political entities (such as was the case of Eritrea seceding from Ethiopia, or east Timor from Indonesia). Rather it also includes the internal dynamics of statehood emphasizing the right of the people to determine how to deal with problems affecting them in ways deemed appropriate by them, and without unnecessary or overzealous interference from outsiders.

As such Uganda should be given audience by the ICC to discuss the possibility of withdrawal of the LRA matter from the ICC in the interest of justice.

Similarly the people of Northern Uganda have the right to self determination and this implies that the primary prerogative of determining how to end the conflict in Northern Uganda. If they decide that the best way to deal with their past is to forgive all those who have committed crimes against civilians, that wish has to be respected by others, including the ICC, if the people decide that those who were responsible for the violation of Human Rights should be dealt with in accordance with their own traditions, that too has to be respected by all who may not share the values of the people affected. This is why the ICC should allow Uganda to withdraw its referral of the LRA situation.

To impose on them an approach that negates prospects of ending the conflict and addressing its root causes, primarily because we want to punish impunity is in itself an act of impunity, an insult, and violation of the peoples right to self determination. The right to self determination is supreme and cannot be overridden by the provisions of any other international instrument, be it the Rome Statute.

The people of Uganda are not looking for prosecutions only. They prefer exploring other justice systems. That is why in 2000, well before the Rome Statute became operational, the people of Uganda through the Amnesty Act 2000, expressed their desire to resolve the conflict in the North and other parts of the country through peaceful means including the grant of amnesty to all individuals who took arms against the government. This decision was a result of the realization that the causes of the conflict are deeply embedded in Ugandas politics.

This is another reason why the ICC should allow Uganda to withdraw the matter of the LRA.

The UN Charter is supreme to the ICC Statute. Uganda has even incorporated the principles in the UN Charter into its own Constitution. Uganda has obligations as a sovereign to guarantee the security of its citizens and these obligations override its duty to corporate with the ICC.

The UN Charter is the supreme instrument in international treaty law. Uganda's obligations under the UN Charter are supreme to any other obligations under another instrument. This is categorically stated under the UN Charter which states that; in the event of a conflict between obligations under any other international agreement, their obligations under the present charter shall prevail. (Emphasis supplied).

That is why Uganda can withdraw from the Rome Statute, it is a sovereign state and that must be respected.

Even excluding the unequivocal import of Article 103 of the UN Charter on sovereignty, any comprehensive interpretation of the of International Law, taking into account the context, makes it clear that the interests and well being of the people must supersede the obligation to hand over Joseph Kony and his top LRA commanders to the ICC for prosecution.

It is true that under The Rome Statute, as well as the broader international law principle of puncta sunt servanda, judicial decisions of the International Court of Justice (ICJ) have held that a state may not invoke its domestic legislation to defeat or avoid its international law obligations. But these principles set general rules to which there is exception.

Under the Vienna Convention on the Law of Treaties, a party may be released from its obligations if there are supervening circumstances that make it impracticable for it to implement those obligations or if implementing such obligations would cause a disproportionately greater harm or damage than the anticipated good.

This position is re-affirmed in the Rome Statute itself. Article 53(1)(c) of the statute makes it clear that in deciding whether or not to proceed with an investigation the prosecutor must consider the interests of the victims and determine whether taking these into account the investigation will serve the interests of justice.

This means that the concept of justice must be primarily viewed from the point of view of the people of Northern Uganda. Therefore if the people want the referral withdrawn then the option should be considered by the ICC.

The ICC warrants once issued and unsealed are not facti accompli. Article 53(4) provides that the prosecutor may at any time reconsider whether to initiate investigation or prosecution based on new facts or information (emphasis supplied).

Clearly even though the investigation stage passed, the Chief prosecutor can stop the prosecutions by withdrawing the warrants. In fact Uganda would then have the chance to exercise its jurisdiction under its national courts on Kony over crimes that the ICC could not.

However for the state to withdraw the matter this may not be possible.

The government of Uganda cannot withdraw the Ugandan referral of the situation to the ICC unilaterally. The ICC Statute does not explicitly address the issue, but its silence on the question of whether a state may withdraw its referral must be interpreted as excluding the self-withdrawal of a state party referral.

The travaux preparatoires of the ICC Statute do not suggest that a State party can withdraw a referral once the jurisdiction of the ICC is triggered. More over it would contradict the ICCs mandate to end impunity if a state could simply decide to stop an ICC investigation once it has begun by withdrawing its referral.

A question then arises what happens when the referring state wishes to un-trigger the Jurisdiction of the ICC. Article 16 of the ICC statute has been referred to as the vehicle for resolving conflict between the requirements for peace and justice, where the council assesses those peace efforts need to be given priority over criminal justice.

It reads ; No investigation or prosecution may be commenced or proceeded with under this statute for a period of 12months after the security council in a resolution under Chapter VIII has requested the court to that effect, that request may be  renewed by the council under the same conditions.

Although potentially useful this Article also raises problems of selectivity and political control over prosecutorial discretion and might have negative impact on the credibility of the ICC
The International Crisis group (ICG) has described Article 16 of the ICC statute as a flawed option in the context of northern Uganda.

This is because the image of the Security council intervening to reprieve a group as stigmatized as the LRA may appear to some an unacceptable affront to Justice and the victim, especially if the a peace agreement does not include any substantial accountability claims.

The International Crisis Group s President Nick Gromo is said to have concluded that; the talks have a long way to go, but if they reach the stage that peace is likely, the ICC prosecutions should be put on hold to give the Millions in Northern Uganda a chance to enjoy the Peace they have  thirsted for 20years.

A Security Council deferral in accordance with Article 16 of the ICC Statute remains a very likely option in the case of Northern Uganda particularly in light of the shocking nature and scale of the atrocities committed in the course of the conflict.

In any case, it is unlikely that the indicted LRA leaders would be satisfied with such a deferral given that it would apply only for a limited (though renewable) period of 12 months.

That restricts its potential utility as a bargaining chip. Bartram S. Brown in his Research hand Book on International Criminal Law predicts that the only situation in which Article 16 may apply in Uganda is where the Uganda government asks the UN Security Council for a deferral until more adequate domestic mechanisms of criminal justice could be set up.

But so far there is no indication that Uganda has any such plans.
Another option that Uganda could have to un-trigger the ICC jurisdiction is under Article 53 of the Rome Statute which gives the prosecutor powers to abandon an investigation but the investigations in Uganda have since been concluded and arrest warrants issued. This option may therefore no longer be available to Uganda.

According to the general rule of treaty interpretation under Article 31 of the Vienna Convention on the Law of treaties, a treaty shall be interpreted according to the ordinary meaning of the terms of the treaty and in light of its object purpose and any relevant rules under international law.

The ordinary meaning of the term in the interests of justice should therefore be interpreted strictly and the discretion still remains with the prosecutor.

Uganda could also argue complementarity in favour of withdrawal of the matter. However the discretion under article 19(1) of the ICC statute remains in the court as was noted in The ICC Pre-Trial Chamber II decision. The Pre-Trial Chamber II also said that the ultimate authority to make determination as to the admissibility of the case is the courts and not for Uganda.

In other words when a domestic system is eventually set up to bring the indicted LRA leaders to Justice in Uganda it will still be the prerogative of the ICC and not that of Uganda to determine whether the system satisfies the requirements of the ICC Statute.

CONCLUSION

In conclusion a State may not withdraw a referral to the ICC unilaterally. However it may request the UN Security Council for a deferral until it develops necessary mechanisms for the prosecution of the perpetrators. The prosecutor may also lose interest and withdraw from the case, or the court may in the pre trial chamber rule the case inadmissible. Once arrest warrants are issued the matter cannot be withdrawn unless the referring state explores the above avenues. Development of mechanisms of trial domestically does not as well guarantee withdrawal of a referral the discretion still remain in the court to decide whether the mechanisms are up to the standard. Therefore a state cannot withdraw a referral unilaterally.        

Legal Research

The built resistance to empirical research in the realm of legal studies in developing states like Uganda may be attributed to the lack of understanding of the law as Vasudha Dhagamawar points out:

‘That law is intrinsically related to society and that our understanding of society is permanently relevant to our understanding of law, whether at the stage of enactment or at the other stage of implementation’

It is important to note that in developing the law understanding the law and its relation to society is crucial. Therefore if empirical legal research would help in ensuring this is done, then indeed it is important in the development of the law. That is why it is important to analyze its importance to the development of the law.

Baldwin and Davis have described empirical legal research as involving the study, through direct methods rather than secondary sources, of the institutions, rules, procedures, and personnel of the law, with a view to understanding how they operate and what effects they have. Empirical research is a way of gaining knowledge by means of direct observation or experience.

Etymologically research is a word derived from the word chercer; to search and late cicare; to go round in a circle. However, the encyclopedia goes on to define research as, the act of searching into a matter closely and carefully, inquiry directed to the discovery of the truth and in particular the trained scientific investigation of the principles and facts of any subject, based on original and first hand study of authorities or experiment Investigations of every kind which have been based on original sources of knowledge’

Methodology on the other hand in the words of Martin Bulner;

‘…denotes the systematic and logical study of the general principles… concerned in the broadest sense with the questions of how… knowledge is established and how others can be convinced that the knowledge is correct.’

Empirical legal research is a not so popular type of research in Africa and all developing countries. Research in such countries is mainly doctrinal because there is this feeling of apathy towards non-doctrinal legal research which would require data collected through empirical techniques.

Mittal once noted that;

‘With the change in the nature of societal realities the techniques of research are bound to undergo change… there is a movement from analytical research to empirical research…and obviously the study of law cannot escape this trend if law is to attain its rightful place as a social science.

Derivative from Mittal’s observation, empirical legal research is important in the development of the law especially in ensuring that the law is understood in connection with social changes, to ensure that the law moves at the same pace of development at which the society moves.

Martin. U. Gasiokwu in his Legal research and methodology observed that once we admit the relevance of law to society, the next step will be to try to explore all aspects of the relationship between law and society, with a view to understanding how law works, whom it serves, how it is understood and why it fails.

Such tasks which are very important in developing the law could be accomplished only by doing empirical legal research thus rendering it important in the development of the law.

This is why Justice V.R Krisha of India lent his support for empirical legal research when he remarked;

‘The law commission and the legislative wing of the law Ministry should not act on impressionistic ideas but on empirical research data…defects and deformities and lacuna and gaps may be noticed in the working of socio-economic laws… and researchers must focus on law reform where social and economic goals are not as intended. ’

Further, empirical legal research helps to high light the deficiencies in legal enactment and the problem of the implementation It can explain which of the laws can be enacted, the causative factors for the delay in administering justice, and problems that arise because of the variation of interpretations given by lawyers. These are very important in the development of the law and as such empirical legal research is important in the development of the law.

Therefore in conclusion empirical legal research is very important in the development of the law, especially where it helps to determine the hindrances to law enforcement, law reform and institutional development and restructuring. All this shows that indeed empirical legal research is to a larger extent important in the development of the law

BIBLIOGRAPHY

A thought on methodology (1982) 24 JILI

Upendra Baxi, Social-Legal Research in India; A program shift( Indian council of social science research occasional monograph No. 12 (iv) 1975

http://en.wikipedia.org/wiki/Empirical_research Wikipedia (The free Encyclopedia), accessed on 22nd .03 .2011

Sociological Research Methods; An introduction, London Macmillan press ltd, 1977

Sociology Vs Anthropological methods in Understanding Indian Legal Reality (1982) 1 d
Peter Cane and Mark Tushnet,

The Oxford Handbook of legal studies, Oxford University press, 2003

The Cambridge Edition of the Encyclopedia Britannica 1911

Martin. U. Gasiokwu, Legal research and Methodology (The A-Z of writing theses and dissertations in a nutshell), Fab Anieh (Algeria) Ltd, 1993

Cohen, Morris, Robert C. Berring, and Kent C. Olson. How to Find the Law. 9th ed. St. Paul: West Publishing Co., 1989.

Cohen, Morris L., and Kent C. Olson. Legal Research in a Nutshell. 7th ed. St. Paul: West Publishing Co., 2000.

Jacobstein, J. Myron, Roy M.. Mersky, and Donald J. Dunn. Fundamentals of Legal Research. 7th ed. Westbury, N.Y.: The Foundation Press, 1998.

Wren, Christopher, and Jill Robinson Wren. The Legal Research Manual: A Game Plan for Legal Research and Analysis. 2nd ed. Madison, Wis.: A-R Editions, 1996. Chapter 1.

MONISM AND DUALISM

MONISM AND DUALISM

The role of the state in the modern world is a complex one. According to legal theory, each state is sovereign and equal. In reality, with the phenomenal growth in communications and consciousness, and with the constant reminder of global rivalries, not even the most powerful of states can be entirely sovereign.

Interdependence and the close-knit character of contemporary international commercial and political society ensures that virtually any action of a state could well have profound repercussions upon the system as a whole and the decisions under consideration by other states.

Also with the rise and extension of international law, questions begin to arise placing ,against each other, the role played by the state within the international system and concerned with the relationship between the internal legal order of a particular country and the rules and principles governing the international community as a whole. Municipal law governs the domestic aspects of government and deals with issues between individuals, and between individuals and the administrative apparatus, while international law focuses primarily upon the relations between states. Nevertheless, there are many instances where problems can emerge and lead to difficulties between the two systems.

In a case before a municipal court a rule of international law may be brought forward as a defence to a charge. The question then is how the court deals with such a situation. Theories have been developed to help in that regard and these are the theories of monism and dualism.

Monism is the view that reality consists of one fundamental ultimate essence. Monists accept that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal. In most so-called "monist" states, a distinction between international law in the form of treaties, and other international law, like for example customary international law or jus cogens, is made. Such states may thus be partly monist and partly dualist.

In a pure monist state, international law does not need to be translated into national law it is just incorporated and have effects automatically in national or domestic laws. The act of ratifying an international treaty immediately incorporates the law into national law; and customary international law is treated as part of national law as well.

International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international rules because, in some states, the latter have priority. In other states, like in Germany, treaties have the same effect as legislation, and by the principle of lex posterior, only take precedence over national legislation enacted prior to their ratification.

In its most pure form, monism dictates that national law that contradicts international law is null and void, even if it predates international law, and even if it is the constitution. Accordingly, state practice and decided cases have established this provision and thereby prevented countries involved in international litigation from pleading municipal law as a method of circumventing international law. Article 27 of the Vienna Convention on the Law of Treaties, 1969 lays down that in so far as treaties are concerned, a party may not invoke the provisions of its internal law as justification for its failure to carry out an international agreement, while article 46(1) provides that a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent.''
On the other hand Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates national law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law.
"International law in dualist states as such can confer no rights cognisable in the municipal courts. It is only insofar as the rules of international law are recognized as included in the rules of municipal law that they are allowed in municipal courts to give rise to rights and obligations".

The supremacy of international law is a rule in dualist systems as it is in monist systems. Sir Hersch Lauterpacht pointed out the Court's determination to discourage the evasion of international obligations, and its repeated affirmation of: the self-evident principle of international law that a State cannot invoke its municipal law as the reason for the non-fulfillment of its international obligations.

If international law is not directly applicable, as is the case in monist systems, then it must be translated into national law, and existing national law that contradicts international law must be "translated away". It must be modified or eliminated in order to conform to international law. Again, from a human rights point of view, if a human rights treaty is accepted for purely political reasons, and states do not intend to fully translate it into national law or to take a monist view on international law, then the implementation of the treaty is very uncertain.

In terms of theories, positivism stresses the overwhelming importance of the state and tends to regard international law as founded upon the consent of states. It is actual practice illustrated by custom and by treaty that formulates the role of international law, and not formalistic structures, theoretical deductions or moral stipulations.

This theory is known as dualism (or sometimes as pluralism) and stresses that the rules of the systems of international law and municipal law exist separately and cannot purport to have an effect on, or overrule, the other Those writers who disagree with this theory and who adopt the monist approach tend to fall into two distinct categories: those who, like Lauterpacht, uphold a strong ethical position with a deep concern for human rights, and others, like Kelsen, who maintain a monist position on formalistic logical grounds. The monists are united in accepting a unitary view of law as a whole and are opposed to the strict division posited by the positivists.

A third approach, being somewhat a modification of the dualist position and formulated by Fitzmaurice and Rousseau amongst others, attempts to establish a recognised theoretical framework tied to reality. This approach begins by denying that any common field of operation exists as between international law and municipal law by which one system is superior or inferior to the other. Each order is supreme in its own sphere, much as Ugandan law and Nigerian law are in Uganda and Nigeria.

So regardless of the approach taken by a state, dualist or monist, the end result is that international law prevails as superior to municipal law as the issue is only of how does it get enforced and applied.

UGANDA

For Uganda's case the current Uganda Constitution was promulgated on 8th October 1995.  The Constitution and the Ratification of Treaties Act constitute the municipal law on treaties within Uganda. The Constitution lists 29 National Objective and Directive Principles on State Policy.  Objective and Principle 28 relates to Uganda's Foreign Policy which are helpful in determining whether Uganda is a dualist or monist state.

Uganda's Foreign Policy is to respect international law and treaty obligations, which override municipal law. Ugandan courts will to this extent accord treaty policy benefits to individuals thereby negating oppressive municipal law provisions. The State and all persons making policy decisions are bound to take into account the Objectives and Principles so as to promote the establishment of a just, free and democratic society.

In the same spirit the President must report to Parliament and the nation at least once a year, on steps taken to ensure realization of the Objectives and Principles. Further any treaties, which had been signed, affirmed or in force, prior to promulgation of the Constitution still bind and have the force of law in Uganda. In Uganda Treaty provisions will prevail in case of any conflict arising from domestic legislation.  In the same vein municipal legislation and judicial practice must conform to treaty provisions.
Effective 8th October 1995, Uganda can only conclude treaties or conventions, only after the Attorney General has issued legal advice.  The Constitution divests the Attorney General of any discretion to conclude any treaty, where the party is a foreign government, government agency or an international organization.

Parliaments ratification jurisdiction is reserved for treaties on armistice, neutrality, peace or the subject of which require amendment of the Constitution.  All other treaties are ratified by Cabinet. The Minister for Foreign Affairs executes all ratified treaties and is the Ugandan depository officer for all treaties to which Uganda is a party. The Attorney General must table, before Parliament, any ratified Treaty.
Therefore Uganda is largely a dualist state because the treaty must be tabled before parliament and domesticated for example the diplomatic Immunities and privileges Act which is the copy of the Vienna Convention on Diplomatic Relations.

BRITAIN

It is part of the public policy of the UK that the courts should in principle give effect to clearly established rules of international law. Various theories have been put forward to explain the applicability of international law rules within the jurisdiction of Britain. One expression of the positivist-dualist position has been the doctrine of transformation. This is based upon the perception of two quite distinct systems of law, operating separately, and maintains that before any rule or principle of international law can have any effect within the domestic jurisdiction, it must be expressly and specifically 'transformed' into municipal law by the use of the appropriate constitutional machinery, such as an Act of Parliament.
This doctrine grew from the procedure whereby international agreements are rendered operative in municipal law by the device of ratification by the sovereign and the idea has developed from this that any rule of international law must be transformed, or specifically adopted, to be valid within the internal legal order of Britain.
Another approach, known as the doctrine of incorporation, holds that international law is part of the municipal law automatically without the necessity for the interposition of a constitutional ratification procedure. The best-known exponent of this theory is the eighteenth-century lawyer Blackstone, who declared in his Commentaries that:  the law of nations, wherever any question arises which is properly the object of its jurisdiction, is in Britain adopted in its full extent by the common law, and it is held to be a part of the law of the land.

This doctrine which refers to customary international law and different rules applies to treaties. When it comes to customary international law, the doctrine of incorporation in Britain has become the main British approach. It is an old-established theory dating back to the eighteenth century, owing its prominence at that stage to the considerable discussion then taking place as to the precise extent of diplomatic immunity.

In the case of Buvot v. Barbuit, Lord Talbot declared unambiguously that 'the law of nations in its full extent was part of the law of England', so that a Prussian commercial agent could not be rendered liable for failing to perform a decree. This was followed twenty-seven years later by Triquet v Bath where Lord Mansfield, discussing the issue as to whether a domestic servant of the Bavarian Minister to Britain could claim diplomatic immunity, upheld the earlier case and specifically referred to Talbot's statement.

However a rule of international law would not be implemented if it ran counter to a statute or decision by a higher court. In the nineteenth century, a series of cases occurred which led many writers to dispute the validity of the hitherto accepted incorporation doctrine and replace it with the theory of transformation, according to which the rules of customary international law only form part of English law if they have been specifically adopted, either by legislation or case-law.

The turning point in this saga is marked by the case of R v. Keyn which concerned a German ship, the Fruncoizia, which collided with and sank a British vessel in the English Channel within three miles of the English coast. The German captain was indicted for manslaughter following the death of a passenger from the British ship, and the question that came before the Court for Crown Cases Reserved was whether an English court did indeed have jurisdiction to try the offence in such circumstances.

The Court came to the conclusion that no British legislation existed which provided for jurisdiction over the three-mile territorial sea around the coasts. It was true that such a rule might be said to exist in international law, but it was one thing to say that the state had the right to legislate over a part of what had previously been the high seas, and quite another to conclude that the state's laws operate at once there, independently of any legislation. One thing did not follow from another.

The question, as Lord Cockburn emphasised, was whether, acting judicially, the Court could treat the power of Parliament to legislate as making up for the absence of actual legislation. The answer came in the negative and the German captain was released. This case marked a change to a transformation approach which is in essence a dualist approach.

The problem therefore is often one of the uncertainty of existence and scope of customary law. In Mortensen v. Peters, a Danish captain was convicted by a Scottish court for contravening a fishing by-law regarding the Moray Firth. His ship had been operating within the Moray Firth and was within the area covered by the relevant by-law, but it was beyond the three-mile limit recognised by international law.

The issue came to the Scottish Court of Justiciary, where Lord Dunedin held that statutes had predominance over customary law, and a British court would have to heed the terms of an Act of Parliament even if it involved the breach of a rule of international law. This is so even though there is a presumption in British law that the legislation is to be so construed as to avoid a conflict with international law. Where such a conflict does occur, the statute has priority and the state itself will have to deal with the problem of the breach of a customary rule.

This modified incorporation doctrine was clearly defined by Lord Atkin in Chung Chi Cheung v R where he noted that: international law has no validity except in so far as its principles are accepted and adopted by our own domestic law.. .The courts acknowledge the existence of a body of rules which nations accept among themselves. On any judicial issue they seek to ascertain what the relevant rule is, and having found it they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.

Therefore Britain practices a largely dualist system when it comes to treaties but an almost monist approach when it comes to customary international law.

KENYA

In general, Kenya has a strong record of ratifying major international and regional human rights instruments. It is a party to six of the seven core UN human rights treaties, with the exception being the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

In a major leap, the 2010 Constitution of Kenya recognises international law as part of the domestic legal order. This provides courts with the opportunity to seek inspiration from the non-municipal legal framework when resolving disputes. However, the manner in which the Constitution incorporates international law is ambiguous and confusing. It fails to create a rank that can be used to resolve conflicts between local legislation and a rule of international law.
This lack of affirmation of the place of international law in the normative rank has spawned judicial interpretation that has accorded international law the same status as statute law. This not only diminishes the weight that courts should place on international law, but also provides courts with a certain amount of discretion whenever a conflict with an Act of Parliament arises. In addition to treaties ratified by Kenya, the Constitution also refers to general rules of international law as being part of the law of Kenya.

This phrase is problematic because, first, it is one not generally used to refer to sources of legal norms in international law. Secondly, it makes it difficult for courts to ascertain where customary international law falls within the scheme of sources of legal norms. There has been a general tendency to equate general rules of international law with customary international law in a manner that is strenuous and confusing. Because courts may not be best placed to devise an interpretation that affirms the content and nature of international law in the legal system, a constitutional amendment has become an imperative if the uncertainty is to be removed.

The most important provisions on international law in the constitution of Kenya include Article 21 (4) The Constitution of Kenya 2010 which provides that the State shall enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms. Article 51 (3) (b) The Constitution of Kenya 2010 states that Parliament shall enact legislation that takes into account the relevant international human rights instruments.

As a result of those provisions of the constitution Kenya now boasts of a somewhat monistic system of recognition of international law. Thus article 2(5) of the Constitution which provides that the general rules of international law shall form part of the law of Kenya has the implication that a court can recognize the so-called general rules without having to look for justification outside the Constitution.

In Re The Matter of Zipporah Wambui Mathara [2010] eKLR para 9, the judge stated that The provisions of the Constitution of Kenya 2010 [were] also invoked, and this ruling would not be complete without a commentary on those submissions. Principally I agree with counsel for the Debtor that by virtue of the provisions of section 2(6) of the Constitution of Kenya 2010, International Treaties, and Conventions that Kenya has ratified, are imported as part of the sources of the Kenyan Law. Thus the provision of article 11 of the International Covenant on Civil and Political Rights which Kenya ratified on 1st May 1972 is part of the Kenyan law.

While this is so, what does one make of the article 21(4) of the Constitution provision that the State shall enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms? This article can only mean that, if the State is required, under the relevant regime, to enact law or do something in order to implement international law that is already binding on it, then it should do so; otherwise it would be violating the Constitution. Any other interpretation would contradict both the text and intendment of article 2(6) of the Constitution. For example, to suggest that article 21(4) means that the State must pass implementing legislation for every respective treaty would be to contradict article 2(6).

Article 2(5) of the Constitution is superfluous due to ambiguity regarding the exact meaning of the phrase general rules of international law. Not even the normative framework under the African Union seems to contemplate general rules of international law. Kituo cha Sheria and Others v Attorney General, the court seemed to conflate different legal concepts into one.28 The issue before the court was whether a Government directive requiring the relocation of all refugees from urban centres to refugee camps in North Eastern Kenya, was unconstitutional. The court held that indeed it was, because it violated not only statutory and treaty law, but also because it was an abrogation of the principle of non-refoulment, which forms part of international customary law
Kenyan courts for a long time refused to apply principles of international law locally. Examples of such cases abound. In Pattni and Another v R, the court reiterated that international treaties were not applicable unless made part of the law

On the one hand, there is the view that international law supersedes conflicting local law (for ease of reference this may be referred to as the Koome view as it was espoused by Justice Koome in a case that first considered the effect of article 2(5) and (6) of the Constitution). On the other hand, it has been suggested that being part of the law of Kenya under the Constitution must mean that international law is not above any local statute (which was first espoused by Justice Majanja, and hence may be referred to as the Majanja view). The court merely agrees that treaties and conventions were part of Kenyan laws but did not engage in a thorough analysis of the relationship between international law and local law. So there is a gap in the true position of international law as opposed to municipal law.

All in all however Kenya is near perfect monist practicing state. It is practicing the purest form monism and all this it owes to the constitution of Kenya 2010. Since it has only been less than six years since the promulgation of the Kenyan constitution we may be too quick to judge as the constitution is still being tested.

NIGERIA

The Nigerian policy on international law is to respect international law as stated under Section 19(d) of The Constitution of The Federal Republic of Nigeria 1999 in the fundamental objectives and directive principles of state policy which states that The foreign policy objectives shall be respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication; and
It is fair to say that Nigerian scholars of international law are divided on the issue. In discussing the transformation and incorporation doctrines of the relationship between international law and municipal law, one group of scholars hold that Nigeria should endorse the doctrine of incorporation. To them, the transformation theory is too ambitious for a developing country like Nigeria. In their opinion, it is imprudent for a nation to subordinate its own internal laws to an international legal system, thereby accepting for itself a secondary role.
The other school of thought on the matter, which this writer supports, warns of the dangers of this line of argument. We prefer the theory which recognizes the growing interdependence of State in their relationships with one another over the dogma of absolute State sovereignty. Both in theory and practice, international law does not ignore municipal law. In many instances, municipal law may be used as evidence of international custom or general principles of law. There are, in addition, certain questions that cannot be decided by international law, and which are invariably left for municipal law.
Quite unlike some states whose constitutions make clear what the relationship between international law and municipal law would be, the Nigerian constitutions have not clarified the matter. Although the 1963 and 1979 Nigerian Constitutions contain references regarding adherence of Nigeria to international law, the references are vague at best. The same continues in the 1999 constitution

The lack of constitutional clarity on this important matter makes it difficult for national courts to resolve cases before them in which issues of international law are involved. This is particularly true in the area of treaty relations, which form the bulk of Nigeria's relationship with other States and other subjects of international law.
International law is essentially comprised of treaties (reflecting express agreements of States) and custom (which incorporates rules of international conduct to which States have given their assent, even if tacitly). To determine which of the competing doctrines Nigeria supports on the relationship between international and municipal law, some examination of her constitutional provisions with regard to treaty practice may be a good starting point.
The most frequently used method of implementing international treaties in Nigeria is incorporation through an Act of Parliament en banco Such incorporating enactments clearly state that the treaty provisions "are in force" domestically. Nigeria may be classified as a country of "mitigated dualism" because of its adoption of this method of incorporation in the implementation of treaties. 141 Nigeria has incorporated human rights treaties to which she is a party into the domestic legal order. Certain human rights treaties, however, have been implemented by enacting domestic legislation in order to achieve normative harmony with the treaty in question

All fundamental rights entrenched in the constitution and treaties on human rights are applicable throughout Nigeria by virtue of the fact that they have been ratified or acceded to by Nigeria. This point is important to make because in some federations, jurisdiction over human rights is shared with lower levels of government within the Federation. Because Nigeria adopts a dualistic attitude toward treaties generally, she does not endorse application of the doctrine of self-executing treaties. Each treaty has clear objectives and aims at achieving set objectives. Different intentions govern each treaty. These intentions influence the method of implementation to be adopted.
It has not been possible to find an explanation or justification for the constitutional adoption of the system of incorporation through an Act of the National Assembly. The Nigerian system of incorporating Acts of the National Assembly en banc should enable the direct application of treaty provisions by domestic courts and other authorities. It is important, however, to develop the practice further to avoid any ambiguities. For example, it is still necessary that the incorporating Acts of the National Assembly should be clear enough and not general in form. In other words, it must spell out whether it is only certain provisions of particular international human rights treaties that are in force in Nigeria and ipso facto, applicable in the domestic courts, or the entire treaty so ratified. It is not enough to accept the treaties as simply "being in force" in Nigeria.
It is therefore safe to conclude that Nigeria is a dualist country because for the international law to be applicable it must be so declared in an Act of parliament.

CONCLUSION

In conclusion regardless of the approach that the country adopts international law remains superior to municipal law. Uganda Nigeria and to some extent Britain are dualist countries whereas Kenya is predominantly a monist country. However neither of all these countries is purely dualistic nor purely monistic.

REFERNCES

Shaw, International law 5th edition Cambridge

Pieter Kooijmans, Internationaal publiekrecht in vogelvlucht, Wolters-Noordhoff, Groningen, 1994

G.J. Wiarda, in Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1992

James Atkin, Baron Atkin, in M. Akehurst, Modern Introduction to International Law, Harper Collins, London,

The constitution of the republic of Uganda 1995

The constitution of the republic Kenya 2010

The constitution of the federal republic of Nigeria 1999

Concorp International Ltd v. East and Southern Development Bank,  [2010] UGSC 19

Deepak K. Shah v Manurama, http://www.ulii.org/ug/judgment/2002/19. Uganda Law Society v A.G, [2009] UGCC 1

Testmony Motors Ltd v Comissioner Customs Uganda Revenue Authority, http://www.ulii.org/ug/judgment/2011/47

Pearl Impex (U) Ltd v. A.G., http://www.ulii.org/ug/judgment/2011/58.

Akidi Margaret v. Adong Lilly, Electoral Commission, [2011] UGHC 57

Legal Notice No.9 of 2001 on the Resolution by Parliament to ratify the African Union Treaty in Uganda. 

Pentecostal Assemblies of God (U) Ltd v. Transsahara International (U) Ltd, [2012] UGSC 12

Oppenheim v. Cattermole [1976] AC 249, 277

Trendtex Trading Corporation v. Central Bank of Nigeria [I97712W L R 356

Maurice Oduor, The status of international law in Kenya AFRICA NAZARENE UNIVERSITY LAW JOURNAL, 2014 page 98

Kituo cha Sheria and Others v Attorney General Constitutional Petition 19 of 2013 (Consolidated with Petition 115 of 2013)
Pattni and Another v R [2001] eKLR

Beatrice Wanjiku and Another v Attorney General and Others Petition 190 of 2011

Christian N. Okeke International law in the Nigerian legal system 1997

CHRISTIAN N. OKEKE, THE THEORY AND PRACTICE OF INTERNATIONAL LAW IN NIGERIA 13 (1986).