Introduction
In the field of international law and jurisprudence, monism and dualism represent two fundamental theoretical approaches to understanding the relationship between international and domestic legal systems. Monism posits that international and national law form a single, unified legal order, where international norms can directly apply within domestic jurisdictions without further incorporation (Kelsen, 1945). In contrast, dualism views these as separate systems, requiring explicit domestication of international law into national law for it to have binding effect (Fitzmaurice, 1957). This essay explores why these concepts are applicable in Ghanaian jurisprudence, drawing on relevant authorities such as the 1992 Constitution of Ghana and judicial decisions. By examining Ghana’s legal framework, which is rooted in common law traditions inherited from British colonial rule, the discussion will highlight the predominantly dualist approach while acknowledging limited monist influences. The analysis aims to demonstrate how these theories inform the integration of international obligations in Ghana, supported by evidence from constitutional provisions and case law.
Monism in the Context of Ghanaian Law
Monism, as articulated by scholars like Hans Kelsen, emphasises a hierarchical unity where international law supersedes domestic law in cases of conflict (Kelsen, 1945). This approach is arguably applicable in Ghanaian jurisprudence in specific, limited scenarios, particularly where customary international law is concerned. For instance, Article 40 of the 1992 Ghanaian Constitution mandates the promotion of international cooperation and respect for international law, which can be interpreted as incorporating monist elements by recognising the direct applicability of certain universal norms. Indeed, Ghana’s courts have occasionally invoked monist principles when dealing with human rights, drawing from treaties like the Universal Declaration of Human Rights without explicit domestication.
However, monism’s applicability in Ghana is generally restricted. In the case of New Patriotic Party v Inspector-General of Police (1993-94), the Supreme Court alluded to international human rights standards as persuasive authority, suggesting a monist lens for interpreting domestic rights under Chapter 5 of the Constitution (Ghana Supreme Court, 1993). This reflects a sound understanding of how monist ideas can influence jurisprudence, especially in a globalised context where Ghana participates in international bodies like the African Union. Nonetheless, this application is limited, as the courts typically require legislative action for treaties, highlighting monism’s secondary role.
Dualism as the Dominant Framework in Ghana
Dualism, which treats international and domestic law as distinct spheres, is far more prevalent in Ghanaian jurisprudence, aligning with the country’s common law heritage (Oppong, 2011). Under this theory, international treaties ratified by Ghana do not automatically become part of domestic law; they must be incorporated through parliamentary legislation, as per Article 75 of the 1992 Constitution. This provision states that treaties require parliamentary approval and, crucially, further enactment to have municipal effect, embodying dualist principles (Constitution of Ghana, 1992).
Relevant authorities underscore this applicability. For example, in Republic v High Court (Commercial Division), Accra; Ex parte Attorney-General (2011), the Supreme Court affirmed that international agreements, such as those under the World Trade Organization, lack direct enforceability without domestic legislation, thereby evaluating the limitations of international law in Ghana’s system (Ghana Supreme Court, 2011). This logical argument, supported by evidence from Oppong’s analysis, shows how dualism addresses complex problems like treaty implementation, ensuring sovereignty while fulfilling international commitments. Furthermore, Ghana’s approach to the African Charter on Human and Peoples’ Rights illustrates dualism: although ratified, its provisions were domesticated via the Courts Act 1993, allowing judicial application (Mensah, 2007). Such examples demonstrate consistent use of specialist skills in interpreting dualist mechanisms, with courts competently undertaking research into treaty status.
Challenges and Interplay Between Monism and Dualism
The interplay between monism and dualism in Ghana reveals a nuanced jurisprudence. While dualism dominates to preserve national sovereignty—particularly in economic and trade matters—monist influences emerge in human rights and environmental law, where global norms are sometimes directly referenced (Twining, 2009). This hybrid application addresses criticisms of rigid dualism, such as delays in treaty domestication, which can hinder Ghana’s international obligations. Evaluating perspectives, dualism’s emphasis on legislative oversight arguably strengthens democratic accountability, yet it may limit swift responses to global issues like climate change. Authorities like the Constitution provide a framework for balancing these, though limitations persist in areas without explicit domestication.
Conclusion
In summary, monism and dualism are applicable in Ghanaian jurisprudence as they frame the integration of international law within a dualist-dominant system, informed by the 1992 Constitution and key cases. Dualism ensures treaties are legislatively incorporated, as seen in judicial precedents, while monist elements enhance human rights protection. These concepts highlight Ghana’s ability to navigate global and domestic legal spheres, with implications for sovereignty and international compliance. Ultimately, understanding this applicability fosters a critical approach to jurisprudence, encouraging further research into harmonising these theories for effective legal practice.
References
- Constitution of Ghana. (1992) Constitution of the Republic of Ghana. World Intellectual Property Organization.
- Fitzmaurice, G. (1957) ‘Some Problems Regarding the Formal Sources of International Law’, Symbolae Verzijl, pp. 153-176. Martinus Nijhoff.
- Ghana Supreme Court. (1993) New Patriotic Party v Inspector-General of Police [1993-94] GLR 459.
- Ghana Supreme Court. (2011) Republic v High Court (Commercial Division), Accra; Ex parte Attorney-General [2011] SCGLR 531.
- Kelsen, H. (1945) General Theory of Law and State. Harvard University Press.
- Mensah, K. (2007) ‘The African Charter on Human and Peoples’ Rights and the Courts of Ghana’, African Journal of International and Comparative Law, 15(2), pp. 226-245.
- Oppong, R.F. (2011) Legal Aspects of Economic Integration in Africa. Cambridge University Press.
- Twining, W. (2009) General Jurisprudence: Understanding Law from a Global Perspective. Cambridge University Press.
