The Constitution of the Republic of Namibia contains in Article 144 a provision which purports to make international agreements part of the national law. It reads:

Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.

The implications of this provision for the domestic application of international trade agreements to which Namibia is a party, has never been ruled upon. This paper investigates some of these implications and tries to clarify the position of trade agreements in Namibian law. It will refer to theoretical issues pertaining to the relationship between international and national law and will seek guidance from the Namibian Constitution. Some of the trade arrangements of which this country is a party, including the 2002 Southern African Customs Union (SACU) Agreement, will be examined. The focus is on international trade agreements.

The objective is to draw attention to bigger picture issues around compliance with international (including regional) trade obligations by Southern African states. This matter has become increasingly relevant as the rules-based nature of the Regional Economic Community (REC) regimes is being questioned, and as concerns about non-compliance by governments and the absence of remedies for private sector firms and traders are being raised.

Namibia provides a useful case study for investigating these issues. Its Constitution, which is supreme law, contains a unique and international law friendly provision; while private parties have begun to invoke trade agreements in commercial disputes before domestic courts. Namibia is a member of the WTO, of SACU as well as SADC. It is presently involved, as a member of SACU, in the negotiations to conclude the Tripartite Free Trade Agreement. Negotiations on the Continental FTA (CFTA) will be launched in June 2015.

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