PRINCIPLES OF CONSTITUTIONAL LAW

A constitution is a set of principles laid down for the management of the affairs of a particular
community. It is basically concerned with the national constitution of a country. Generally it deals with
the form of government, centralised or decentralised, federal or unitary, parliamentary or presidential.
It also concerns itself with powers of different organs of government.

It deals with the relationship between the government and its citizens. It defines who a citizen is, rights
of the citizen, privileges etc. It also establishes the machinery for running public services, allocation of
resources, sexual equality, land etc.

Constitutionalism is often associated with the political theories of John Locke and the founders of the
American Republic, that government can and should be legally limited in its powers, and that its
authority depends on its observing these limitations. This idea brings with it a host of vexing questions
of interest eg how can government be legally limited if law is the creation of government? Does this
mean that a government can be self limiting? Is there a way of avoiding such an implication? If
meaningful limitation is to be possible, must constitutional constraints be somehow entrenched? Must
they be enshrined in written rules? If so, how are they to be interpreted? Should interpretation be in
terms of the literal meaning, or the intentions of the authors, or in terms of the possibly ever changing
values they express?

How one answers these questions depends on how one considers the nature, identity and authority of
the constitution. Does a constitution establish a stable framework for the exercise of public power which
is in some way fixed by factors like the original meaning or intention? Or is it a “living tree” which grows
and develops in tandem with chan

ging political values and principles?

WHY A CONSTITUTION

Society is a system where conflict cannot be avoided. Conflict is normally due to lack of agreement on
how to harness resources for the benefit of the country and how to share the national cake. This lack of
agreement is normally manifested in political rivalry, arguments about systems of government, use of
resources etc. To avoid this, it is necessary that there exists a recognized formula to solve these
problems. Any good, organised and orderly society must have a constitution to run the affairs of that
country.

It is also necessary because it establishes certainty about certain issues eg certainty about rules, checks
on arbitrary power.

A country will normally need a constitution in any of these stages:

1. Stage of attaining nationhood; 2. As a result of a revolutionary process where a country’s constitution

has been overthrown through either a popular uprising or a military insurrection. This is necessary
because if not done, those involved can be arrested and tried for overthrowing the government or
constitution.
3. It is also necessary when a country is splitting up; or in case of popular demand for a new
constitution; or to address past grievances.

BASIC ATTRIBUTES OF A GOOD CONSTITUTION

Commented [OJ1]: A document which lays down the main rules governing the structure and functions of
government; regulates the relationship between the state and its citizens; and provides a measure of
the legitimacy of government actions.

Commented [OJ2]: CL is concerned with the role and powers of the institutions within the state and with
the relationship between the citizen and the state.

Commented [OJ3]: A constitution is a thing antecedent to a government; and a government is only the
creature of a constitution.

Commented [OJ4]: Constitutionalism as a doctrine suggests the conceptual and practical requirements
of limitation of power, the separation of powers and the doctrine of responsible accountable
government.

Commented [OJ5]: A constitution is a living, dynamic organism which at any point in time will reflect the
moral and political values of the people it governs. CL must be appreciated within the socio-political
context in which it operates.

1. Certainty – The provisions must be known or determinant. It cannot serve its purpose if it is
impossible to state with certainty what its provisions are. Certainty is the main advantage that written
constitutions have. 2. Acceptability by the people upon which it is imposed. 3. Perpetuity – it should be
able to stand the test of time and operate for both the present and future. 4. Fundamentality – it should
be the basic law of the country. All laws are supposed to be subordinate to the constitution and any law
inconsistent with it is void to the extent of the inconsistency. 5. Applicability of universal principles – Any
constitution shall include all universal principles namely rights, separation of powers, rule of law etc.

DIFFERENT METHODS OF CONSTITUTIONAL MAKING

Constitutions are made in different ways. Each country chooses what is suitable and effective at the
instant time. The methods will normally depend on the circumstances of the time i.e. political
development, economic realities and social and other standards in the country.

The methods used include: -

 The formation of a constituent assembly where the people through their elected representatives,
deliberate and agree on what the constitution should be.
 Use of Acts of Parliament where the making of the constitution is left in the hands of parliament
through enactment of laws. Countries like the UK have no written constitution but the parliament is left
to enact the appropriate laws.

 Process of a referendum where eligible voters are asked to approve or disapprove a given text as a
constitution of a country. The draft is made either by the government or an independent body. It can be
drafted before or after getting the views of the people. Normally a referendum will ask for a yes or no
vote and there’s an agreed percentage that is to be considered in determining whether the referendum
is successful or not.  By proclamation – where a ruling hierarchy or person normally before asking for
people’s views declares a document as a constitution. This is common in dictatorships or totalitarian
governments eg 1961 where an Act of parliament was used to pass the constitution.

 Method of usage and convention – over time the above methods have become concretised into rules
of constitutional making and every government is expected to take some form of judicial process.
However, there is no universal constitution in the world.

SOURCES OF THE CONSTITUTION

There are various sources from which a constitution can be drawn. America used to be a model of
constitutional making. It used to be done by a hand picked elite group and the constitution was seen as
a means of settling conflict and as a means of ushering in a new regime.

Where a constitution is unwritten, then its source is from custom. In most countries, constitutions are
reduced into one particular document. However, Acts of parliament can also be sources of
constitutional law. Another source is case law whereby disputes about the applicability of certain
constitutional provisions are resolved by the courts, and they do so by using principles of interpretation
which are found in the common law, precedents and the Interpretation Act. There are also usages and
conventions, and finally juristic writings.

Classification

With regard to classification, some constitutions can be understood to belong to particular categories
either by looking at the form i.e. written or unwritten, flexible or rigid, monarchical or republican,
federal or unitary, centralised or decentralised.

Classification depends on the legal rules relating to the regulation, functions and powers of government
which are reduced into a document or a series of documents.

If a constitution is written, one does not go against the written rules, but where it is unwritten, legal
rules are contained in other sources other than a written document and this may be in form of custom,
usage, convention etc. such rules can only be established after having been proved to have existed by
experts or witnesses.

The contrast between Rigidity and Flexibility

This relates to the degree to which provisions of the constitution are considered timeless (entrenched).
Constitutions must be changeable and must somehow accommodate changes in society. A constitution
is said to be rigid if the process to amend it involves special procedures which ensure unanimity of views
eg asking all eligible voters to give their view through a referendum. It is said to be flexible if it can
simply be amended by a simple majority.

Although theories of constitutional interpretation are many and varied, they all seem in one way or
another to ascribe importance to a select number of key factors. These include textual meaning, political
and legal history, intention and moral or political theory. The roles played by these factors in a theory of
constitutional interpretation depend crucially on how the theorist conceives of a constitution and its
role in limiting government power. Eg if a theorist views a constitution as foundational law whose
existence, meaning and authority derive from the determinate historical Acts of its authors or those
they represented, and whose principle point is to fix a stable framework or set of ground rules within
which legislative, executive and judicial power are to be exercised by the various branches of
government, such theorists may be inclined towards an interpretative theory which accords pride of
place to factors like author’s intentions and literal or plain meaning in so far as the latter is considered
the best guide to the former. So while considering a fixed view of a constitution, it is natural to think
that such factors should govern whenever these are clear and consistent.

Not all theorists believe that the foundational role of a constitution demands that its meaning and
interpretation be somehow fixed or that its interpretation is solely and absolutely immune to from
considerations of moral and political theory. Some constitutional scholars view the constitution as a
living tree which by its nature must be allowed to grow and adapt to contemporary circumstances and
beliefs about justice. One who is inclined towards the living tree conception will tend to ignore appeals
to strict textual meaning and author’s intentions as attempts to impose the dead hand of the past upon
contemporary society and practice. Government must be limited in power but our understanding of
these limitations should be allowed to evolve and adapt in light of changing circumstances and beliefs
about justice. Despite undoubted appeal to some, the living tree conception faces tough questions; eg is
viewing a constitution as a living tree consistent with its status as foundational law, and with the
entrenchment, stability and protection from unwarranted state power which seem to be crucial if not
essential aspects of a constitutionally limited government.

GENERAL AND DETAILED CONSTITUTIONS

Commented [OJ6]: a) Written and unwritten b) Rigid and flexible c) Supreme and subordinate d)Federal
and unitary e)Separated (decentralised) powers and fused (centralised) powers f)Republican and
monarchical

Commented [OJ7]: A written constitution is one contained within a single document. The origins lie in
the American war of independence (1775 – 83) and the French Revolution (1789); and more recently
from the grant or devolution of legislative power from imperial colonial powers.
Commented [OJ8]: States with written constitutions are characterised by a clear historical break with a
previously pertaining constitutional arrangement secured either through peaceful settlement or violent
revolution.

Commented [OJ9]: This classification rests primarily on the question whether or not a constitution can
be amended with ease.

Some constitutions are general in the sense that they outline the basic constitutional principles and
nothing else. The constitutional matters which are legislative in nature are left to be handled by
parliament. Others are detailed in the sense that it attempts to cover all areas. As such they are very
long and kept in book form.

Constitutions that are detailed have a disadvantage since they tend to provide for everything; such that
in case something is left out, it becomes very contentious.

TYPES OF GOVERNMENT

Several constitutions provide different systems of government

Difference between Unitary and Federal government

The difference is found in how power is shared between the central government and the local
government. Central government refers to the body of officials who have ultimate say over all matters
of governance in the country. A federal state however, the constitution divides the powers between the
central government and mini governments of the federating regions or states in such a way that those
states run certain affairs without referring to, or accounting to the central government; eg the USA,
Germany, Nigeria. On the other hand, when considering a unity state, all powers of government are
concentrated in the hands of one central government. Some local units may exercise powers delegated
to them by the central government but since they have to account to the latter, they are not federal
states. The central government may give or take away those powers and as such remains ultimately
responsible for ensuring that those functions are carried out.

Characteristics of a Federal government

Executive power in the country normally rests with the central government; local governments are given
specific powers which cannot be taken away by the central government. In addition these small state
government officials may have absolute powers as far as administrative measures within the state are
concerned, and the central government cannot interfere.

Legislative powers are normally shared between the state government and the central government.
Normally, the constitution will prescribe which legislative powers are to be performed by each of the
legislatures. A constitution may achieve this by setting out a list of matters which can only be legislated
upon by the central government eg foreign affairs, defence, fiscal and macro-economic policy. The other
aspect is sharing of judicial powers between local and central government.

There’s usually a high court and one final appellate court for the federal governance. The constitution
may however provide that some matters may remain in the exclusive jurisdiction of the federal court; eg
matters relating to constitutional interpretation.

Why may a country opt for a federal constitution?

Economic and military viability may be some of the considerations. Canada decided to find strength in
size by federating, lest those provinces be consumed by the US. Likewise, at independence some leaders
of the East African states advocated for federation arguing that separate states were too small to be
economically viable.

There may be a question of sharing executive power with the head of state which may curtail dictatorial
tendencies.

Considering the geographical expanse of countries like the US, Australia, Canada, Nigeria etc, effective
administration can only be done through a federal system. More so, diversity in ethnic origins may be
another reason since it may be difficult to unite people from different tribes.

Specific features like islands, mountains, may necessitate federal system for easy management of a
country’s affairs.

Historical facts eg South Africa, Tanzania, Germany etc These can easily create a federal structure since
existing states are not ready to relinquish power.

REPUBLICAN FORM OF GOVERNMENT

The idea of a republican form of government emerged as a rebellion against absolute monarchy in the
late 17th century and through out the 18th. The first attempt to deal with absolute monarchy took place
in the UK culminating in the 1688 petition of rights which took away power from the king and gave
powers to the judiciary to control the king. This gave birth to a constitutional monarch.

A monarchy is governance by an individual or individuals who claim their right to hold to power by virtue
of historical right; sometimes by virtue of divine right. Power in a monarchy is transferred by progenitor
i.e. birth right. An absolute monarch is answerable to himself. All governmental powers come from and
return to the king or queen. The king is the constitution.

A constitutional monarch is a monarchy governed by basic principles enshrined in basic documents. A

constitutional monarch does not exercise executive powers i.e. honorary/ceremonial ruler.

The most extreme rebellion to absolute monarchy came with the emergence of a republican
government i.e. a government not ruled by a monarch. Rulers in a republic are elected into government.
The first republic was born in 1789 with the French Republican government, which inspired the USA. The
French eliminated the monarchy are declared the following –

1. No such thing as divine or birth right; 2. Executive power and honorary power were to be
distinguished; 3. The people were to have a say in the selection of their leaders;

Within the republican system of government, there are many different forms that can be adapted but
the principal distinction is between a presidential system and a parliamentary system of government. In
the presidential system, executive power or authority is vested in the president who is usually the head
of state and government, and elected by universal suffrage.

Within the presidential system, we can have a president who is fully independent of the legislature i.e.
executive power is completely distinct from legislative authority eg USA. We can also have a president
who draws his ministers from parliament.

Parliamentary system usually will have a division of power between the head of state and a prime
minister as head of government with executive powers.

Positives of monarchy

A monarchy is billed as a unifying factor in as far it is attributable to cultural states. They represent
historical continuity and a neutral mobilizing force in these societies. Monarchies play a significant role
in mobilising resources because of their cultural attributes. They are politically neutral and play a role of
arbitrators.

Negative dimensions

There’s no choice in a monarchy. People have no say in who becomes the monarch and you are stuck
with them until they die or abdicate. The problem is compounded when the monarch is dictatorial and
where checks and balances are inefficient to prevent the monarch from operating like a dictator.

Monarchies are parasitic. They consume the resources of the state but do not contribute to it. They are
the antithesis of the idea of equality.