The Use of International Human Rights Law by Superior National Courts : A Comparative Study of Kenya and South Africa

Abstract

The practice of domestic courts continues to present challenges for understanding the relationship between international law and municipal law. Whereas constitutions increasingly contain more or less similar provisions on international law, the subsequent use of international law by domestic courts varies from traditional doctrinal approaches. This divergence by domestic courts is attributable to the fact that domestic and international courts/tribunals are engaged in exchanging ideas and formulating similar decisions on diverse substantive law issues out of a sense of common judicial identity and enterprise. Due to the multitude of actors and the complexity of the relationships involved, the traditional monism-dualism doctrines do not accurately reflect current practice. Rather, this process is better termed as transnational judicial dialogue. Through transnational judicial dialogue, domestic courts collectively engage in the co-constitutive process of creating and shaping international legal norms and, in turn, ensuring that those norms shape and inform domestic norms. This study analyzes decisions of the superior courts of Kenya and South Africa in order understand the manner in which the courts receive, interpret and re-formulate international legal norms. It is clear that the domestic courts are not mere conduits for the reception of international legal norms into the domestic legal order but that they act as mediators between the international and domestic legal norms. This study also attempts to demonstrate that transnational judicial dialogue may provide normative guidance for the relationship between international law and national law in the domestic legal order.