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 façade 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.
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