A constitution provides a framework of rules that creates the structure and functions of a human organization. Any organization might have a constitution, although an organization that depends on close personal bonds such as a family is unlikely to do so. We are concerned with the organization of a country comprising millions of people with few common purposes capable of giving shape to a constitution .
Wade and Phillips define constitution to be “a document, having special legal sanctity, which sets out the framework and the principle functions of organs of government of a state and declares the principles governing the operations of those organs”
The above definition suggests that a constitution needs to:
• Be a legal document
• Set or establish the Pillars of the government
• Set the functions of those organs
• Set the powers and limits of those organs
However, this definition has received a lot of challenges from scholars who argue that it is not necessary for a constitution to be found in a document, it is possible for a country to have her constitution in various documents, United Kingdom is mostly sited as an example where by her constitution is made by the Magna Carta, 1215, the petition of right, 1628, The bill of Rights 1688, The Act of Settlement 1700, and the Acts of Union.
Wheare defines constitution into two.
He firstly defines to mean “the whole system of government of a country, the collection of rules, which establish and regulate or govern the government. These rules are partly legal in the sense that courts of law will recognize and apply them and partly non-legal or extra-legal taking the form of usages, understandings, customs or conventions which courts do not recognize as law but which are not less effective in regulating the government than the rules of law strictly called”
In the above definition Wheare talks much on what it means by the word constitution by basing on the essence other than the form (document or documents) of the constitution. That is the wider and broader meaning of he term.
In the narrow sense of the constitution Wheare says in almost every country in the world except Britain, constitution means “the whole collections of rules, legal and non-legal but rather a selection of them, which have usually been embodied in one document or in a few closely related documents”.
Prof. Issa Shivji defines constitution to be a piece of basic or fundamental law, which tells how the state and its various apparatus are organized, the interrelationships between them and the division of power inter-se between and among these apparatuses.
Perhaps, one would agree with Prof. Shivji et al … by saying that Constitution is a law found in one or more documents which constitutes State Power and defines the relationship between major organs of the State and between the State and the Citizen.
Prof. A. V. Dicey (Dicey, 1915, p. 22) defines constitution to mean all rules directly or indirectly affect the distribution and exercise of the sovereign power in the state. Therefore, Dicey focuses on constitution being a composition of rules that bring about how state power is distributed and exercised. By this notion Dicey speaks on a constitution that puts in place state organs, whether all rules are to be found in a single document or in various documents that is not a, matter of concern and discussion to Dicey.
Anthony King writes [a] constitution is the set of the most important rules that regulates the relations among the different parts of the government of a given country and also the relations between the different parts of the government and the people of the country. With definition Anthony seems to deal much on idea that constitution is made up by rules that set organs of government and how they relate between themselves and their relationships with individuals. Anthony joins Dicey on the constitutional form, that constitution might be a document or documents.
Freidrich writes, a constitution is the ordering and dividing of the exercise of political power by that group in an existent community who are able to secure the consent of the community and who are thereby make manifest the power of the community itself. Freidrich’s definition suggests that a constitution is to establish state power that is a result of peoples’ consent. He stresses on consent of the community. (This seems to be a political approach).
Tully (2002) suggests that a constitution has a special status, he defines it as the cluster of ‘supreme’ or ‘essential ‘ principles, rules and procedures to which other laws, institutions and governing authorities within the association are subject. Therefore, according to Tully, once a constitution exists all other laws, organs of the government and institutions must derive their legality from the constitution. In this perspective constitution is supreme.
NB:
It is also the time to discourage the argument by some people who define constitution to be a contract or agreement between the State and citizens or between the ruling class and the ruled one. Prof. Shivji says, this is not correct either historically or legally. For, there is no evidence that rulers and the ruled sit together and negotiate a contract called constitution. If it is to be understood that a constitution is an agreement or contract it is to be shown as to when and where these two parties to a constitutional contract met and set terms of their contract, the thing that in normal circumstances cannot be obtained. Again, for those constitutions that are not Democratic how can citizens agree to a contract that violate or does not recognize their rights for example? The modern philosophy of constitution sees the constitution as a product of consensus among people themselves (see in the preamble of our constitution that declares that it was made by the people). In historical reality, various constitutions come about through different historical circumstances and reflect the results of social and political struggle in those societies. Therefore, the argument that a constitution is a contract is wrong both, legally and historically.
Why a Constitution?
It is obvious that one will ask himself, after going through various definitions, why constitution? There are number of reasons why there is a need to have a constitution in countries around the world:
• A constitution acts as a political manifesto of any government in power. By being the political manifesto the constitution states the kind of government that is in power and its political ideology. For example the constitution of the United Republic of Tanzania states in the preamble that…KWA HIYO, BASI, KATIBA HII IMETUNGWA NA BUNGE MAALUM LA JAMHURI YA MUUNGANO WA TANZANIA, kwa niaba ya Wananchi, kwa madhumuni ya kujenga jamii kama hiyo, na pia kwa ajili ya kuhakikisha kwamba Tanzania inaongozwa na Serikali yenye kufuata misingi ya demokrasia, ujamaa na kujitegemea na isiyokuwa na dini.
• A constitution is also used to put in place the guiding principles for the ruling class and the ruled one. It puts the guiding principles in definitive words so that he rulers and the ruled may know those guidelines.
• A constitution establishes the organs of the government and gives powers and limits to these organs. In this the constitution has a last say and acts a supreme organ.
The above explanation as to why constitution is summed up by Prof. Shivji who says, depending on how it was made that is whether it was imposed or arrived at by a consensus a constitution serves an important function of giving political power legitimacy, that is, acceptability and respectability. Another important function of the constitution is to structure state power by establishing and defining the powers and functions of different organs and institutions of the state. The third function of the constitution is to limit the exercise of power by stipulating certain basic rights of citizens.
Classification of constitutions
Constitutions are classified in different ways such as:
• Written or Un-written
• Flexibl only the creature of a constitution
A constitution is not the act of a government, but of a people constituting a government; and government without a constitution, is power without a right. It is to be noted that though many countries in the world adopted written constitution the form, purpose and the content of their constitutions differ, however De Smith writes, although written constitutions differ widely in their purposes, form and content, they normally be found to have two characteristics in common. They will be the fundamental law of the land, and they will be a kind of higher law. They will be fundamental law in so as they designate the principal organs and invest them with authority; thus, they will constitute and define the Legislature, and state what is the scope of the law-making power and the procedure for exercising that power. In other words, they will be law behind the law- the legal source of legitimate authority. It has been argued that written constitutions seek to avoid a concentration of power in the hands of any one organ of government by adopting the principle of separation of powers, vesting legislative power exclusively in the legislature, executive power in the executive and judicial power in the courts . However, if that mission stands, that will be the discussion on next post.
Unwritten constitution means a constitution that is found in various writings- in statutes, law reports, parliamentary standing orders, works authority, and so on, although authoritative and reasonably comprehensive document called the ‘Constitution’ is lacking. This type of constitution is found in United Kingdom where the foundation of legal system is covered by the doctrine of the legislative supremacy of the parliament and therefore, much greater importance attaches to Acts of Parliament and also to judicial decisions.
Flexible or Rigid Constitutions
A constitution is flexible when it requires no special procedure for amendment. Any changes that are to be done in a flexible constitution need not to pass through a special procedure. It is taken to be easy to amend a flexible constitution. Rigid constitution is a type of constitution that requires special procedure to be followed before it is amended. A special procedure may take the form of referendum for example. (Referendum is a defined to mean a direct vote by all the people of a nation or area on some particular political question ). (On the procedure how to amend our constitution see Art. 98). However, De Smith observes, the rigidity or flexibility of written constitutions cannot be ascertained merely by comparing procedures for constitutional amendment. A constitution containing a cumbersome procedure for its own amendment may in fact be very flexible if there is no effective opposition to the party in power; and several modern states have authoritarian regimes . Therefore, De Smith is of the view that flexibility is a matter of degree, which will not necessarily be predetermined by the formal procedure for constitutional amendment.
Presidential or Parliamentary Constitutions
This class mainly refers to system of a particular country, whether presidential or parliamentary. It bears much on the executive branch of government in relation to the legislature. In Presidential constitutions the President is both the head of the state and the head of the executive, but he is not a member of a legislative body directly. Tanzania is a good example of this system. In Parliamentary system the executive is the Prime Minister who is also the member and is responsible to the legislature, that is, he also sits in parliament when it makes laws. The President if any, the Queen, or the King remains as head of state, a title that is a mere ceremonial.
Federal or Unitary Constitutions
Federal constitution is found in Independent States that have come together in a form of Union for certain reasons and interests, but they preserve their identity and some measure of independence. United States of America and Nigeria are good examples. In this constitution tonarch or very extensive personal discretionary powers (as in Nepal), or one can have very limited personal powers like in the United Kingdom. It is also possible for one to have a President who is the head of the State but is not the effective executive head of Government (Germany is a good example), or one who is both head of State and head of Government like in the United States of America.
Single Party and other Constitutions
Obviously a constitution under which only one party can legitimately operate tends to differ from one in which, at least ostensibly (presumably), freedom of political association is permitted. A constitution for a single-party State is apt to be of a political manifesto. In such a constitution, lip-service (insincerity) may still be paid to the basic freedoms of the individual. However, in some States with single-party constitutions (as in Uganda) there is more freedom of expression than in States with impeccably liberal constitutions (as in Zimbabwe). Tanzania, with the 1965 Interim Constitution, was once a single-party state where by the Party was supreme, over and above the Organs of the State. However, with the Eighth Constitutional Amendment Act, 1992, Act No. 4 of 1992 a landmark change in the history of constitutionalism was experienced in the country. The amendment introduced a big change in terms of political party style; it introduced Multi-party system.
Diarchical and other Constitutions
A diarchical constitution can be defined to be as one in which there is a division of governmental competence between two or more authorities in the State otherwise than on a regional basis. For instance, law-making powers may be divided between the Legislature and the Executive, the former having power to pass laws within a defined field and the latter having an autonomous and exclusive power, derived directly from the constitution, to issue decrees, ordinances or regulations within a defined field. Such divisions have close likeness with the doctrine of separation of powers that will bestruggle in those societies. Therefore, the argument that a constitution is a contract is wrong both, legally and historically.
