Lesson Three: Constitutions and Constitutionalism
The principle of limiting the activities and powers of the three organs of government to the provision of the constitution is known as constitutionalism.
This principle ensures that the organs of government functions within the limits of their powers as specified by the constitutions of the State. Constitutionalism is the establishment of a constituted authority.
Principles of Constitutionalism
The underlining principles behind constitutionalism are:
(i) Absolute power must never be given to those in authority absolute power corrupts power absolutely; therefore, they must be restrained by the law in the exercise of power.
(ii) Individual rights must be provided for and protected by the law.
(iii) The individual rights are protected by courts which are independent and unbiased in their judgements.
(iv) The guarantee of the equality of all citizens before the law.
(v) The supremacy of the constitution and laws of
Limitations to Constitutionalism
The principles and practice of constitutionalism are limited by some factors within the State, these factors include:
(i) tradition and culture of the people which are sometimes in direct conflict with the constitution;
(ii) emergency situations within the country, e.g. when there are major disturbances within the country. This leads to the break-down of law and order. During this period, acts leading to violations are easily committed.
Organised associations exist under some basic principles and rules which govern their operations. The State as an organised institution also has basic rules and regulations governing its operations. These rules and regulations way be written or unwritten. The rules governing a society or a State are called tie constitution.
The constitution is a set of fundamental principles rules customs and practices by which government establishes, allocates, empowers and manages its organs end citizens; thus defining the citizens right and obligations in relation to the State.
Nature of the Constitution
The nature of the constitution is based on the following points
(i) It is the ultimate document of the law that is superior to all other laws in the state.
(ii) Other laws are made from it.
(ii) It Is brief and meaningful.
(iv) It reflects the values, ideals and aspirations of the people.
(v) It is dynamic and adaptable to changes.
Sources of the Constitution
Sources of the constitution include past experiences, judicial precedents acts of parliament, conventions, customs and norms. The government is a creation of the constitution.
Scope of the Constitution
A constitution consists of five basic features which are:
(i) Ideals and Purposes: The constitution is an expression of the ideals and aspirations of the people. These ideals are identified and documented in the constitution. For example, the 1979 constitution has its chapter two devoted to stating the fundamental objectives and principles of the State.
(ii) Basic Structure of Government: The structure of government is explained in the constitution as the arrangement of the basic organs of governmental authorities as well as other political institutions which are parts of the authorities.
(iii) Distribution of Powers: The constitution defines the powers of the three principal organs of government, their relationship, jurisdiction and limitations.
(iv) Citizens’ Right: This is the core of the constitution and it is referred to as fundamental human rights or bill of rights. It defines the rights of citizens, thus setting a limit of governmental powers.
(v) Mode of Amendment: Methods of changing the original constitution as well as those qualified to effect the change are indicated in the constitution.
Types of Constitutions
Constitutions are generally classified into any of these two groups:
(a) Written or Unwritten Constitution.
(b) Rigid or Flexible Constitution.
There are other classifications such as:
(c) Parliamentary or Presidential Constitution.
(d) Federal, Confederal or Unitary Constitution.
When the rules, regulations, laws, customs, principles and conventions of any particular country are contained in a single document, such document is referred to as the constitution and it is known as a written constitution.
Many countries of the world have written constitutions. Examples of such countries are Nigeria, Ghana, United States of America (U.S.A) etc. A written constitution is usually rigid in nature, this means it cannot be easily amended.
Characteristics of Written Constitution
The following are the common features of written constitution:
(I) It cannot be easily amended
(ii) It is simple in nature, i.e. it is easy to understand.
(iii) It is not spread over many different documents but contained in a single document.
(iv) The introductory part always contains statements on the essence of the constitution.
It always states clearly the rights and duties of the citizens and relationships of the organs of
Advantages of Written Constitution
(i) It helps to check the activities of elected officers by comparing their actions with the provisions of the constitution.
(ii) References can be easily made since the constitution is a single document which is obtainable and accessible.
(iii) Citizens have access to it, hence they are better informed about their rights.
(iv) Changes can be made when the need arises.
(v) Organs of government can function in harmony, knowing that their roles were clearly spelt out.
(vi) lt allows for stability of working principles.
Disadvantages of Written Constitution
(i) Urgent constitution changes are often delayed due to the long process of amendment.
(ii) It is open to over-politicisation as politicians exploit it to their advantages.
(iii) Government action may be frequently delayed as many of its activities
would be declared legal due to flaws in the constitution or misinterpretation of the constitutional provisions.
(iv) Problems often arise in the interpretation of a difficult or an ambiguous provision. e.g. the provision for winning an election in the 1979 constitution.
(v) Not all systems of government can operate within the constitution. An example of the system of government that cannot use a written constitution is the military system.
(vi) Unnecessary distraction of the government through litigation by the citizens on abuse of office or violation of rights.
The constitution that is not formally stated in a single document is known as unwritten constitution. In such a constitution, the judicial guidelines customs.
Conventions and status directing governmental affairs cannot be found in one particular document. The constitution of Britain is a good example.
Characteristics of Unwritten Constitution
The major characteristics of an unwritten constitution are as follows:
(i) It is simple to amend.
(ii) It can be adapted to the needs of the people.
(iii) The constitution provisions are based on known laws and customs.
(iv) It is commonly used in a homogenous society
Advantages of Unwritten Constitution
(i) It is usually very flexible and adaptable to changes.
(ii) It can easily be amended.
(iii) It allows for easy, quick and timely decisions.
(iv) It evolves from years of stable political system.
(v) Issues are not over-politicised since the provisions of the laws are known to all.
(vi) Interpretation is easy since it is not rigid.
(vii) Government organs work more harmoniously due to the constitution’s flexibility
Disadvantages of Unwritten Constitution
(i) It can easily be abused, thus encouraging dictatorship.
(ii) Individual participation in government is limited since citizens rights and duties are hot clearly spelt out.
(iii) There is often a lot of ambiguity due to its flexibility.
(iv) Reference in cases of dispute is difficult and unconstitutional acts cannot be easily ascertained.
(v) Unwritten constitution in a vast heterogeneous society will lead to constant tension and instability since the constitution is so flexible.
(vi) Basic laws of the land are easily trivialised.
A rigid constitution is one that cannot be easily amended. The rules, regulations and statutes that guide governmental activities must pass through stringent and time-consuming amendment procedures.
Rigid constitutions are normally written constitutions but not all written constitutions are rigid. The constitutions of Nigeria, Ghana, Canada; United States of America (U.S.A.) are all rigid.
Advantages of Rigid Constitution
(i) Amendments are subject to careful consideration.
(ii) Continuity and smooth transition of government is guaranteed.
(iii) All sections of the country are taken care of, thus removing the fear of marginalisation in a heterogeneous society like Nigeria.
(iv) Political office holders cannot change the constitution at will to serve their selfish interest thus reducing dictatorial tendencies.
(v) Constitutional ambiguity is minimised thus ensuring proper interpretation of the provisions.
Disadvantages of Rigid Constitution
(i) lt is difficult to amend
(ii) Actions are slowed down in times of emergency because of its inflexibility nature.
(iii) Rigid constitution is time consuming and expensive to write, change or amend due to its nature.
(iv) Some of its provisions cannot be easily changed when they are obsolete thus creating problems during interpretation in modem times. An example the obsolete electoral college provision in the U.S. constitution.
(v) Political conservatives can use obsolete provision in a rigid constitution to hinder the progress of a nation.
A Constitution that can easily be changed or amended is said to be flexible. A simple majority is needed to effect any change or amendment. Most flexible constitution are unwritten. The Ghana independence constitution of 1957 was a flexible constitution.
Advantages of Flexible Constitution
(i) It is easily amended.
(ii) it is not time-consuming.
(iii) Changes can be easily effected in an emergency situation.
(iv) It is very cheap to amend or change.
(v) It is adaptable to socio-economic change in the country.
Disadvantages of Flexible Constitution
(i) It can be hastily and wrongly amended.
(ii) It can be easily manipulated by leaders with dictatorial tendencies due to its flexibility and ease of amendment.
(iii) Political stability and cohesion are often endangered in a heterogenous society.
(iv) It is often characterised by flaws and ambiguity due to its flexibility.
(v) Provisions for amendment are so loose that motion for amendment can be raised by lust anybody.
Differences Between Written and Unwritten Constitutions
(i) Written constitution is contained in a single document while unwritten constitution is not.
(ii) Written constitution is more complex in nature while unwritten constitution is not.
(iii) Written constitution states its essence while unwritten constitution does not.
(iv) Amendments in written constitution are difficult and cumbersome but easy and straight forward in an unwritten constitution.
(v) Citizens rights and duties are dearly stipulated in a written constitution but they are not in an unwritten constitution.
(vi) Relationship between the various organs of government and their functions are clearly stated in unwritten constitution.
(vi) Written constitution is generally rigid while unwritten constitution is generally flexible.
Functions of a Constitution.
(I) It checks the powers of public officers thus preventing dictatorial or autocratic tendencies.
(ii) It contains rules and laws with which the citizens of a country are governed.
(iii) It makes for peaceful co-existence based on the agreed common law of governance.
(iv) It defines and protects citizens, rights and duties.
(v) It ensures continuity and smooth transition of government.
Procedures for Constitutional Amendment
One of the features of a constitution is that it makes provision for its own
amendment. The following are the ways in which a constitution can be amended:
(i) Amendment through Referendum: This method employs the people’s verdict as a basis of amendment. A provision to be amended is subject to an open vote in which the citizens decide the outcome through the ballot.
(ii) Amendment through Legislation: A simple majority of the legislature can bring about a constitutional amendment in an unwritten constitution but majority is required br a written constitution. The change can also be effected through normal legislative process.
(iii) Amendment through Federal Authority: In countries that adopt the federal system of government, constitutional amendment lies with all the component parts of the federation.
(iv) Amendment through Coup d’état: During military regime, sections of the constitution are suspended with new decrees issued which have equal strength and authority as the constitution. Such acts are however unconstitutional because coup d’état is a treasonable offence in most constitutions of the world.
(v) Amendment through the Judiciary: Judicial interpretation of the constitution especially in a written constitution, can lead to amendment.
(vi) Amendment through Customary Means: Amendment may arise due to conflict with customary practices especially in unwritten constitutions.
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