Policy Monitoring and Research Centre Status of Ratification of International and Regional Treaties

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Dear Friends & Colleagues
1.0 INTRODUCTION

This briefing document seeks to outline the regional, continental and international treaties to which Zambia is a State party and where possible, the status of ratification of these treaties. It looks at the implications of being a State party and the attendant obligations. It also touches on some of the inherent challenges in ensuring that reporting obligations are met, while upholding the duty to respect, protect and fulfil the rights contained in each instrument.

Zambia is an active member of several multilateral and regional organisations, notably the United Nations (UN), the World Trade Organisation (WTO), African Union (AU), the Common Market for Eastern and Southern Africa (COMESA) and the Southern African Development Community (SADC). Membership to these international and regional bodies entails certain obligations and Zambia, like many other countries in the world, is a State party to international instruments that she has ratified.
2.0 TREATY PROFILE AND STATUS

Below is a summary of some of the key international treaties and conventions to which Zambia is a State Party. They are clustered into continental, sub-regional and international categories.

3.o STATUS OF INTERNATIONAL LAW IN THE ZAMBIAN LEGAL SYSTEM

The Constitution of Zambia (Amendment) Act No.2 of 2016 provides that the laws of Zambia consist of:

The Constitution
Laws enacted by Parliament
Statutory Instruments
Zambian customary law which is consistent with the Constitution
The laws and statutes which apply or extend to Zambia as prescribed.
The Constitution makes no mention of the status of international law in the Zambian legal system. Zambia belongs to the dualist tradition which views international law and domestic law as two separate legal systems. Domestication of international law by way of an Act of Parliament is the only means by which international law can be applied. Therefore, once a treaty is ratified, it has to undergo a separate process to make it justiciable under Zambian law.

3.1 Ratification Process

The Ratification of International Agreements Act2 provides for the process of ratification. In order to appreciate the process it is desirable to look at the contents of the Act.

3.1.1 Salient Features of the Act

Section 2
Interpretation

Section 3
General Responsibility over International Agreements. Under this section, there are several considerations to take into account, vis:

The objective of the international agreement;
Whether existing legislation adequately addresses the objective of the international agreement;
The impact of implementing any measure specified in the international agreement;
Whether there are any legislative measures that may be required to give effect to the international agreement.3
After due consideration of the foregoing, where the Minister deems it fit to do so, the process to ratify is initiated in consultation with the Attorney General of the Republic. This is done by way of Cabinet Memorandum seeking approval in principle to ratify a treaty.

Section 4
Consideration of Proposal for Ratification: Cabinet is vested with the authority to consider, approve or disapprove a proposal to ratify.

Section 5
Approval of Proposal for Ratification: Where approval is granted, the proposal is submitted to the National Assembly as provided by the Constitution, which sets out the functions of the National Assembly, one of which is to approve international agreements and treaties before these are acceded to or ratified.4

Section 6
Ratification of Amendments: Amendments to treaties are subject to the steps set out in this Act, which are essentially the same as when the initial ratification is being considered.

Section 7
Ratification of Protocols: These are modifications to the principal treaty and are also made subject to the steps above.5

Section 8
Deposit of Instruments: In Zambia, the Ministry of Foreign Affairs is responsible for depositing instruments of ratification at the Registry of International Agreements. Copies of the same are filed at the Ministry of Justice.

Section 9
Grant of full powers: At the direction of the President, the Minister of Foreign Affairs may grant credentials to any person to be the States’ representative in negotiating, adopting and authenticating text of a treaty. This person has power to bind the State under a treaty.

Section 10
Suspension of operation of, or withdrawal from, an international agreement. This Act governs the steps to be taken by the State should it wish to withdraw from a treaty.

Section 11
State Party Reporting: This provides that the Ministry responsible for the subject matter of a treaty prepares the State party report in collaboration with the Ministry of Justice.

Section 12
Domestication: The Ministry of Justice is responsible for domestication procedures after the Ministry responsible for the subject matter initiates the process as provided in the Act.

Section 13
Registry of International Agreements: This Act establishes a Registry of International Agreements

Section 14
Annual Report: The Ministry of Foreign Affairs is required to lay before the National Assembly an annual report on:

International agreements ratified.
International agreements pending ratification.
Amendments or modifications that have been effected to international agreements.
International agreements in respect of which suspension has been requested.
Section 15
Regulations: The Minister of Foreign Affairs may issue regulations by statutory instrument for the performance of this Act.

3.2 Domestication Process

It is worth noting that international conventions are not self-executing under the Zambian Constitution. This means that in order for any international treaty to take effect in Zambia’s legal framework, a separate process of domestication must take place through enactment of law in Parliament. The Constitutions of some countries, such as Namibia and South Africa, contain clauses that stipulate that international treaties entered into by those countries automatically become part of domestic legislation. Others, like Zambia, dictate a separate process of domestication by way of an Act of Parliament being enacted to give effect to the treaty, in whole or in part. The Ratification of International Agreements Act provides for the domestication process aforementioned.6 For instance, most recently the Gender Equity and Equality Act No. 22 of 2015 effectively domesticated the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in its entirety.

In other instances, only partial domestication is required, where key clauses from a treaty are incorporated into domestic legislation.

3.3 State Party Reporting

Treaties entered into by the State party oblige it to render periodic reports to the relevant treaty body and provide guidelines for how to prepare national periodic reports. The periodic reports contain information on the legislative, administrative and other measures taken by the State party to implement its obligations under the treaty. The reports also note key trends and identify challenges and/or obstacles to the full realisation of the aspirations of a convention. Generally, initial reports are due one or two years after a country ratifies a treaty (the treaty dictates the reporting cycle); thereafter periodic reports on implementation are due every four or five years. This is reflected in the Ratification of International Agreements Act.7

Special procedures such as committees of independent experts, special rapporteurs and working groups clustered by theme, monitor implementation and require Governments that have ratified conventions to submit regular reports on the status of implementation in their countries. Under international law, a State party is under obligation to respect, protect and promote the provisions of international treaties and conventions hence the special procedures aforementioned to ensure that this is done uniformly.

3.4 Legislative Interventions Facilitating Domestication

By and large, the treaties that Zambia has ratified have been translated into legislation, policies and programmes, thus bringing the benefit of international standards into the domestic legal framework. This also has the effect of easing implementation and monitoring. Some of the pieces of legislation on the Statute Book that have been informed by international and regional treaties to which Zambia is a State party include, but are not limited to, the following:

Gender Equity and Equality Act No.22 of 2015
Refugees Act No.1 of 2017
Persons with Disabilities Act No.6 of 2012
Anti-Gender Based Violence Act No.1 of 2011
Anti-Human Trafficking Act No.11 of 2008
Narcotic Drugs and Psychotropic Substances Act
Forfeiture of Proceeds of Crime Act No.19 of 2017
Protection of Traditional Knowledge Act No. 16 of 2016
3.5 Gaps and Shortcomings

It has been a common trend for most nations, especially African nations, to merely sign treaties but not move towards accession and/or ratification. Some instances of this trend have also been observed in Zambia. There are a number of reasons for this state of affairs for several countries and the following are generally the main reasons;

Limited capacity in the institutions charged with compliance. Inadequate institutional capacity to apply, implement and enforce many of the protocols, conventions and treaties have been cited as a major shortcomings for several nations. These include lack of experienced human resource, limited financial resources and technical expertise.

There are lapses between signature and accession/ratification such that there is no follow up if the parties go to sleep.

Fragmented responsibility and poor record keeping is another factor. In the Zambian case, the Ministry of Foreign Affairs and Ministry of Justice are involved in the process but there is need for more information sharing across other ministries as well as developing a firm calendar to trigger State party reporting on time. The Registry of International Agreements should also be easily accessible especially electronically to ease retrieval of information which is lengthy and tedious. It would also make monitoring easier, especially by civil society organisations monitoring implementation.

There are delays in Zambia in the submission of periodic reports to committees of experts under each treaty with the result that concluding observations are not addressed on time.

The law that makes compliance obligatory needs to be enforced. International treaties are not self-executing under Zambian law but the Ratification of International Agreements Act provides guidance for enforcement.

Public awareness is low. We observe that in most African countries, majority of the people usually have limited knowledge about the standing of their respective countries at international law nor do they know how they are impacted.

4.0 CONCLUSION

From the account rendered above on Zambia’s standing at international law, it can be appreciated that a lot has been done to comply on a range of subjects. Many of the key international treaties and conventions to which Zambia is a State party have been beneficial in terms of making successive Governments accountable to its citizens. The various special treaty monitoring bodies ensure compliance and have sent teams to conduct assessments in-country. This is a participatory process involving State institutions, the UN and related agencies working in the country to support implementation, as well non-governmental organisations and civil society organisations. This speaks of an enabling environment and political will. It remains important to ensure that Zambia is up to date with its reporting obligations so that concluding observations are addressed on time and the benefits of ratifications flow to the respective targets. In this regard, Parliamentary oversight should be strengthened and enforced.

READ MORE HERE:

https://pmrczambia.com/wp-content/uploads/2020/12/Status-of-Ratification-of-International-and-Regional-Treaties-1.pdf

Mrs. Bernadette Deka-Zulu – PMRC Executive Director