Definition, Types, Importance and Sources of Constitution

 

Definition, Types, Importance and Sources of Constitution

A constitution is usually a body of rules and regulations; it may be written or unwritten, by which a group of people, a country or an association is to be governed.

It explains the relationship between the organs of government as well as the fundamental rights and obligations of the citizens.

Constitution is the supreme law from which other legislation or enactments draw their strengths. It is also the only means by which the actions of a government and its institutions could be measured or assessed to be legal or ultra vires.


What is Constitution?

In the contemporary world, there is no country that does not have a constitution; being a body of fundamental laws by which a country is governed. It is inconceivable that the modern government, with all its complex apparatus can operate without a constitution. Even in the pre-modern societies with its less elaborate institutions, a constitution would still be needed, otherwise the simple task of law making, execution and adjudication would still be less precise, or lack proper delineation, if not problematic. A constitution is therefore a fundamental prerequisite for the political stability, economic well being and social cohesion of a country.

A constitution provides the framework and principles, which governs the organization of government, its institutions, the nation’s political philosophy and aspirations as well as the relationships between the citizens and the state.

Literally, a constitution is the system of laws and basic principles that a state, a country or an organization is governed. A constitution in general terms, is the body of rules which directly or indirectly affect the distribution of power or the exercise of the sovereign power in any nation-state. Classically, it is the collection of principles according to which the powers of the government, the rights of the governed and the relations between the two are adjusted.

The word constitution has been defined in different ways by scholars. A. V. Dicey explained that a constitution is meant to be a document having a special legal sanctity. According to Austin Ranney,“a constitution is a whole body of fundamental rules, written or unwritten, legal and extra -legal according to which a particular government operates”.

According to the Black’s Dictionary, a constitution is the organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to conform, organizing the government, regulating, distributing as well as limiting the functions of its different departments/organs. There are two ways we can view a constitution. One can look at it as an “ethno-cultural arrangement” which bring together the way of life of a people. In this sense, a constitution is concerned with establishing a standard by which a people judge themselves and their leaders. In another sense, a constitution can be seen as simply a legal document, which defines the power, structure and the institutional sources corresponding to such power structure.

For example, when the question is asked: What is the basis of the power exercised by the legislature in confirming executive appointments or approving treaties, or that of the judiciary in determining the legality or otherwise of legislations or executive actions? One should look into the constitution to find the rationale.

Constitution is therefore a charter of governance; it prescribes how the power of the state is distributed among the institutions in the state, and the process of its amendments. Constitutions define the limits of a government authority, thereby automatically establishing and safeguarding human rights. A constitutional democracy is therefore a form of government, which is regulated by a constitution and whose procedure cannot be altered except by a method accepted by its citizens.

 

Types of Constitution

1. Written constitution

When a Constitution is described as written, it means that the body of rules and regulations by which a country is governed is written or codified in a single document that can be consulted. This presupposes that the Constitution becomes a document through a process that involves (or accommodates the views of) the majority of the people who participate either directly or through their representatives in drafting, debating, reviewing and adopting the contents of the document before it can be regarded as the fundamental laws of a nation. The American Constitution readily satisfies this requirement since it originated from the Constitutional Convention held at Philadelphia in 1878. To some extent, the 1979 Nigeria Constitution can also be regarded as having partially met this requirement since it originated from the Constitution Drafting Committee of ‘49 wise men’ set up by Gen. Muritala Muhammed regime in 1975. The draft was debated by a group of elected Nigerians from each Local Government Areas in the federation called ‘Constituent Assembly’ that was put in place by Gen. Olusegun Obasanjo in 1975. The document was promulgated into law through a decree enacted by the Supreme Military Council (Ojiako, 1979). The major difference is that unlike the United States’ Constitution that was ratified by nine of the thirteen pioneer states in the country, while that of Nigeria was not subjected to a referendum or a plebiscite.

This is why the preamble “We the people of Nigeria”at the beginning of Nigeria’s successive Constitutions since 1979 is viewed in some quarters, as dubious.

We can now identify the salient features of a written Constitution as follows:

1). It usually contains a preamble at the beginning, which is a statement expressing the essence, goals, aspirations and vision of the people of the country. It is otherwise known the spirit of the Constitution.

2). It also specify the organs of government, defines their respective powers and their relationships with one another, including the eligibility requirements before individuals can occupy positions in government.

3). A written Constitution usually states Fundamental Human Rights such as freedom of speech, freedom of association, freedom of movements as listed in Chapter IV, Sec. 33-45 of the 1999 Constitution of the Federal Republic of Nigeria. It also contains their limitations and safeguards, including the obligations the citizens in a state owe to themselves and the state (Awolowo, 1966). Most written Constitutions like those of the USA and Nigeria do contain elaborate procedure for their amendments, which often make most written Constitutions to be rigid from the point of view of the stringent process of altering or changing them. Sec.9 (1-4) of the Nigerian Constitution, 1999 states the cumbersome mode of altering the provisions of the Constitution.

4). The power sharing arrangement is also enshrined in a written Constitution. For instance, the Second Schedule, Parts I and II of the Nigerian Constitution, 1999 contains the Legislative Powers shared among the Federal, States and the Local Government Councils under the Exclusive, Concurrent and Residual powers.

5). The document gives the Federal government the powers to legislate on all items under the Exclusive List; while both the Federal and State governments can legislate on every item under the Concurrent Legislative List, only the Local Councils have Residual Powers over items not listed under the two Legislative Lists.

It is also noteworthy the consistent addition in the Nigerian Constitution, since 1979, the introduction of a chapter called the Fundamental Objectives and Directive Principles of State Policy which explains the fundamental obligations which are encoded as Political, Economic, Social, Educational, Foreign and Environmental Objectives (See Secs. 13-20, Nigerian Constitution, 1999). However, scholars see the provisions as a fa├žade of honesty because the Constitution did not make it justiciable (i.e. violations by the state cannot be challenged in law court). There are no provisions to guarantee the rights of any aggrieved citizen not satisfied with the performance of a government concerning meeting its Social Contract obligations as enshrined under the sections, can seek legal redress or judicial intervention under the fundamental enforcement.

2. Unwritten constitution

When we refer to any state as having an unwritten Constitution, it means the guiding principle by which the country is governed is traditionally not set out in a single document. This implies that the fundamental laws according to which the given state is governed are based on conventions, customs, usages, etc. The Great Britain is a good example of a country operating unwritten Constitution in her more than 500 years of democracy. The British Constitution is drawn from diverse sources, extending from the 13th century to the present. This means that the British Constitution is more or less a product of a historic evolution that led to the change from absolute to Constitutional Monarchy in 1215.

There was never a period when the people of Great Britain deliberately proposed to make a Constitution but this should not be misconstrued to mean that they do not have a Constitution stating how the affairs of the British people are run. What is important to note is that there is no single book that could be referred to as the British Constitution rather, it is a system of government which has not been written down in a documentary form. In this regard, it must be stressed that some parts of the Constitution are contained in different statute books. The fact that there was no any period in the British history when they actually constituted a constitutional conference for the purpose of making a Constitution makes it impossible to find the British Constitution in a single document. Given its nature, the British Constitution contains not only statutes or Acts of Parliament but also customary laws of the land and conventions, which qualifies to be referred to as Constitution (albeit unwritten). Sources of unwritten Constitution therefore include statutes such as the Magna Carter (1215), Petition of Right (1628), the Bill of Rights (1689), the Reform Act (1832) and the Parliamentary Act (1911), Common Law and Case law, conventions or customs and judicial decisions.

3. Flexible Constitution

These are the Constitutions whose fundamental laws can be changed or amended by simple majority votes of the members of the Parliament. This form of Constitution is used by small countries that operate a unitary system of government. The amendment can be made in such constitutions by the same procedures used in passing ordinary laws in the parliament. Some of the countries operating flexible constitutions include Great Britain, Ghana during the first Republic, Italy and New Zealand. Flexible constitutions may or may not be written. It is also possible to have a written constitution that is at the same time flexible as shown in the case of New Zealand.

4. Rigid Constitution

Rigid Constitutions are those that cannot be easily changed or amended because they require special and usually difficult process. This implies that the process of amending such constitution is different from the ordinary law-making process; the process is not only difficult but also complicated. This process is actually laid down in the constitution themselves. Examples of countries with rigid constitutions are Australia, United States of America, Canada and Nigeria. Some reasons have been advanced for adopting the special procedures. It is said that such rigid constitutions should be changed only with proper deliberation; and that such process should give the people, at least through their elected representatives, or via a referendum opportunity to express their views whether a change is necessary or not before such an amendment(s) is made.

The amendment process is therefore made difficult to protect the interests of the people. For example the Nigerian Constitution can only be amended with the concurrence of two-thirds majority of all members of the National Assembly (i.e. the Senate and the Houses of Representatives), and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States in the federation. Another important reason for the adoption of a rigid constitution by a federal state is to prevent the union from disintegration through secession.

5. Unitary Constitution

A government is regarded as unitary when the national or central government is supreme over other levels of government that might exist in a given state. Other levels of government referred to in the above definition are the local governments or units. The central government has full legal right to over-rule such Local governments. They are not only created by the center, they owe their existence to the center and are subordinate to the national Government. The principle that governs a unitary constitution is Unitarianism. The word ‘Unitarianism’ means the concentration of political power in the hands of one visible sovereign power; be it that of a parliament or a legitimate dictator. In short, a unitary constitution means that sovereignty is exercised from one source rather than from many sources. It is a unit centre of power, meaning that power emanates from one source only.

6.  Federal Constitution

A country with a federal constitution is called a federation; and its government is referred to as a federal system of government. A federal constitution or system can be defined as a constitutional arrangement in which the powers of government are distributed between the central and component units. In its strict sense, it means the distribution of powers between the government at the federal level and those of the federating or co-ordinate states who are relatively autonomous. This means in effect that the powers being exercised by these component states are distributed along what is known in America as reserved or shared powers, or in Nigeria as Exclusive, Concurrent and Residual powers. From the above definition, we can easily see that a federation is union of autonomous states who have come together to become a larger political entity as in USA or a dis-aggregative federation where a large country is broken into smaller units, as it is the case in Nigeria (Ayoade, 1980:5-8).

In a federal state each of the component states, like the federal government, derive their powers from the same source- the constitution. This is why Kenneth Wheare (1963), a foremost authority of federalism defined it as a constitutional arrangement in which

 “neither the central nor regional governments are subordinate to each other, but rather the two levels of government are coordinate and equal.” Where also set out conditions that can make a federal constitution/system succeed. According to him the component units must be fairly equal in size and population so as to prevent one unit from dominating the other or a combination of two or more units, from dominating the entire federation. As he puts it:

It is undesirable that one or two units in a federation should be so powerful that they can overrule the others and bend the will of the Federal Government to itself. There must be some sort of reasonable balance, which will ensure that all the units can maintain their independence within the sphere allotted to them and that no one can dominate others.

J. S. Mill elaborated on this principle thus:

It is essential in a federation that there should not be any one state so much powerful than the rest as to be capable of vying in strength with many of them combined. If there be such a one it will insist on master of the joint deliberations, if there be two, they will be irresistible when they agree; and whenever they differ everything will be decided by a struggle for ascendancy between the rivals.While the American federal constitution can be said to have met this requirement, the Nigerian federal constitution in the First Republic during which the Northern region bestrode the entire federation like a colossus clearly violated this principle. The states creation exercises undertaken by the successive military regimes in 1967, 1976, 1987, 1990 and 1996 were meant to redress the imbalance inherent in the colonial inherited Nigerian federation. Federalism encourages unity in diversity and a very potent instrument for national integration in plural societies. It is an ideal system for large and heterogeneous countries like the United States, China, Russia and India. It is a delicate arrangement that requires mutual tolerance. In any federal state, the role of the judiciary or the court is vital to ensure that no level encroaches on the other. Its major disadvantage is that it is expensive to run because of duplication of government departments.

 7. Confederal Constitution

Confederation is a league or union of many sovereign states for a common purpose. A confederation has also been defined as that arrangement in which two or more sovereign and independent states agree to come together to have a central but weak government. In other words, the term of a confederation applies to a union of states, which is less binding in character than a federation. Examples of confederal states are the United States between 1776 and 1789, the United Netherlands in 1579, the German constitutions of 1815 to 1867 and 1867 to 1871(before and after the unification of Prussia with other German states).

The features of a confederal constitution include: The states in a confederation would not lose their separate identity through the political arrangement and retain the right to secede. The supreme power belongs to the co-ordinate states. Therefore, the coordinate states dominate the central government; the constitution may not be rigid and the central authority is weak while confederal units are strong and powerful. Judging from the experience of the United States, confederation has not proved to be a successful model, even for those who adopted it after the Americans discarded it in 1789. Other examples of confederacy are the African Union (AU), Economic Community of West African States (ECOWAS), European Union (EU), and the Commonwealth of Nations, to mention a few.

 

Importance of constitution

A constitution is critical to the understanding of government and how the citizens of a country are governed. It is an instrument for the consolidation of state power. A constitution traditionally explains the powers and limitations of the government in a society. With this, citizens can measure the performance of the government from time to time. Being the embodiment of the general will or the legal sovereign in a state, provisions of a constitution are supreme and superior to any other laws in the land. Every other law in the land must be consistent with the constitution; otherwise, such law or laws shall be null and void to the extent of its inconsistency.

A constitution serves as a medium for setting out the code of conduct or pattern of behaviour acceptable in a given society. More importantly, the constitution in a state usually establishes the direction of the ship of the state by setting out the fundamental objectives and directive principles of state policy. The constitution not only defines the power of each organ, it demarcates the responsibilities of each, thereby eliminate unnecessary frictions or overlapping of functions among different levels or agencies of the government.

A constitution may however not anticipate every situation that may arise. As a result, at the point of drafting not all sentiments, assumptions and aspirations of the people may find expression in a written form. For this reason, a distinction is often made between the letters and the spirit of a constitution. Being a product of human engineering a constitution is not necessarily a perfect document, and may contain some defects or anomalies, or ambiguities, including lacunas that may not come into light until it is put into practice. At times, judicial interpretations might be required to make such provisions more precise; at other times, an amendment may be necessary to remove ambiguities. In Nigeria, for example, the controversy over the off-shore/on-shore dichotomy and the seizure of the funds due to the local governments in Lagos state were not resolved until the intervention of the Supreme Court. Similarly, the decision by the two chambers of the National Assembly on February 9, 2010, to pass separate resolutions investing the Vice President Goodluck Jonathan with the power of Acting President of Nigeria was one example of finding a political solution to a constitutional crisis. As Senate President, David Mark surmised:

The doctrine of necessity requires that we do what is necessary when faced with a situation that was not contemplated by the constitution...In doing so we have maintained the sanctity of our constitution as the ultimate law of the land.

The constitution of any country usually takes its cue from its peculiar circumstances and is also a reflection of the aspirations of its people. It is without doubts the most important document in any political system and for this reason; a constitution is sometimes referred to as the ground norm. It is almost a settled principle of political discourse that in a country where there is widespread respect for the provisions of the constitution, a regime of constitutionalism is said to have been enthroned, which in turn will help to generate national consensus and promote political stability.

Other Importance of Constitution includes:

Each state has a Constitution which lays down the organization, powers and functions of the Government of the State. The government always works according to the Constitution, no law or order of the government can violate the Constitution. Constitution is the supreme law and all government institutions and members are bound by it.

1. It reflects the sovereign will of the people.

2. It lies down of the aims, objectives, values and goals which the people want to secure. .

3. It contains description and guarantee of the fundamental rights of the people.

4. It gives a detailed account of the organization of the government. The organization, powers and functions of its three organs of the and their inter­relationship.

5. In a federation, the Constitution lays down the division of powers between the central government and the governments of the federating states/provinces. It is binding upon both the centre and the state governments.

6. It specifies the power and method of amendment of the Constitution.

7. It lays down the election system and political rights of people.

8. It provides for independence of judiciary and rule of law.

9. The constitution governs all and no one can violate its rules.

Every democratic Constitution guarantees to the citizens a protection against arbitrary governmental actions. A democratic state, like India, has a written and supreme constitution which binds its entire people and their government.


Sources of Constitution

1. Judicial Precedents: These are rulings of the courts that have found their ways into the constitution. In constitutional cases, especially, whenever a judiciary rules on a matter before it, that then becomes the new law. That decision is used as the bases of another decision in the future, especially where the cases are similar.

2. Opinions of political and constitutional writers: Another source of a country’s constitution is the writings of great political thinkers. Concepts such as Separation of Powers, Checks and Balances, Rule of Law, socialism, capitalism etc, were proposed by great writers on politics. The writings of Karl Marx, for example, influenced the constitution of the former Union of Soviet Socialist Republic.

3. Customs and conventions: The customs and practices of the people can also be the source of a constitution. These are the portions of the constitution that have not been written down but which over the years have been accepted as practices under the constitution.

4. Constitutions of other countries: Framers of a country’s constitution may study the constitution of other countries and pick up best practices which are then incorporated into the new constitution. It is believed that parts of the 1960 Constitution of Ghana were derived from the content of the American, French and British Constitutions. 

5. Customs and Conventions: The customs and practices of the people can also be the source of a constitution. These are the portions of the constitution that have not been written down but which over the years have been accepted as practices under the constitution.

6. Past Constitutions:  Also, previous constitutions serve as the source of a country’s new constitution. In coming out with a new constitution after a previous one has failed or after a long period of military rule, the earlier constitution is studied and aspects that are relevant are incorporated into the new one. It is believed that 1960 constitution of the republic of Ghana, influenced some of the provisions of the 1969 constitution. 

7. Decisions of a constituent Assembly: Another source of a constitution is the decision of a Constituent Assembly that has been put together to draft a constitution for a country. Proposals are forwarded to the constituent assembly from various quarters of the country and these proposals are thoroughly discussed and decisions arrived at as to what to include and what not to include in the proposed constitution.

8.  Judicial Precedents: These are rulings of the courts that have found their ways into the constitution. In constitutional cases, especially, whenever a judiciary rules on a matter before it, that then becomes the new law. That decision is used as the bases of another decision in the future, especially where the cases are similar.

 

 

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