A constitution may be defined as a set of rules, which establishes the institutions of the state, defines their powers, sets limits on their powers and defines the rights and duties of the citizens.
Constitution may also be seen as the supreme law, which regulates the government of a state. In short, a constitution is a set of codified rules establishing the institutions of government, laying down the procedure according to which the institution are to operate and determining the relationship that should exist between the institutions.
The rulers derived their power from the constitution and are therefore required to operate within the ambit of the law.
Kelsen, for example, contends that a constitution is the ‘grundnum’ or the will of the people. If that is true, then the constitution is the primary fundamental law of the State. Every state has a constitution, which defines the relationship between the governors and the governed.
In many countries, these fundamental rules are found in a document called ‘constitution’. In a few other countries, such as Britain, the rules are found in written laws known as statutes all Acts of Parliament, judicial precedents and conventions.
However, the form of a constitution depends on a large extent upon the nature of the State. In other words, the history, geography, social structure, economy, religious beliefs and racial composition of a country determine the nature and character of a country’s constitution.
Nevertheless, every constitution is uniquely and influenced by its environment. since the constitution exists primarily to protect the rights of citizens and to limit the powers of those entrusted with authority, it’s character will ultimately be determined by what rights and power are accepted by the country as being important. Moreso, it is important to underline the fact that a constitution is not a necessary and sufficient condition for the existence of democracy in a state.
It is possible to have a constitution and yet be undemocratic.
This chapter covers the definition, types, sources, features and scope of constitution.
Constitutions are usually derived from Acts of Parliament, Judicial Precedents, Common Law, Proclamations, Delegated Legislation, etc. Below is a brief explanation on the sources of constitutions:
Acts of Parliament Laws made by Parliament constitutes a major source of constitutions. They deal with the powers of government institution and the rights of citizens. Examples of such laws in Britain include the Habeas Corpus Act (1679), the Bill of Rights 1689, the Magna Carta 1215 and the Act of Settlement 1701. In Nigeria,the Land Use Act and the Public Order Act are typical examples.
Judicial Precedents Judicial precedents or decisions are another source of constitutions. The doctrine of judicial precedent is based on the principle of “stare decisis”, that is, stand by past decisions and do not disturb things at rest. What it means is that decisions of higher courts are binding on the lower courts. Such judge-made laws are an important source of constitutions.
Customs, Conventions and Precepts Conventions are also an important source of constitutions especially in countries which claimed to have a written constitutions. A convention is an arbitrary but consistently observed practice. A breach of a convention may lead to crisis in government. an important convention in Britain is that when a vote of no confidence is passed on a government, the cabinet must resign and called for the dissolution of Parliament to pave the way for fresh elections.
Another source of constitutions is the common law. A common law is a law based on customary practice. In Britain, a number of royal prerogatives and parliamentary privileges developed from such customary practices and in the course of time, the came to form part of what is called common law.
Proclamations Proclamations which are made after revolutions or a military takeover of government may also be the source of a constitution. even though short proclamations or decrease are made by military juntas without any reference to the people, some of them have since become part of our constitution. An example is Nigeria’s Local Government Decree of 1976 which introduced a uniform system of local government in the country.
Provisions of previous or existing constitutions are sometimes incorporated into a new constitution. Several parts of the 1999 Constitution of the Federal Republic of Nigeria are derived from the 1979 and 1989 Constitutions including provisions on fundamental rights, the President and the National Assembly.
Delegated Legislation Delegated legislation is another source of constitutions. That is, statutory instruments, orders, directives and by-laws made by public bodies are sometimes incorporated into constitution.
Authoritative Books and Authorities Authoritative books or authorities(scholars, philosophers, etc.) On constitutions or constitutional issues are also a source of constitutions. An authoritative books, for example; is that appears to have been taken that theories developed by early writers (such as Plato, Aristotle, Walter Bagehot, Karl Marx, A.V. Dicey and Sir Ivor Jennings) are of universal application. That is, not withstanding the time, place and some other conditions, it was argued that the theories could be applied. But this is not generally true. This, to cite authorities and to insist that they must form part of the constitution should depend on the place and time.
Since the form and characters of constitutions vary from country to country, it follows that the scope of constitutions is elastic. Whatever may be the case, every constitution should cover the following:
A constitution must state the powers of government and the method of changing parts of the constitution.
It must specify the functions to be performed by the various branches of government, especially the legislature, executive and the judiciary.
In a federal state, it is necessary to define the powers, which are to be exercised by each level of government and its principal offices and the relationship between the federal, state and local governments.
In a unitary state, it is proper for the constitution to clearly define, and state the limits on the powers to be exercised and the procedures to be followed when it is necessary to alter the power of public office holders.
A constitution should state in clear terms the qualifications of public officials, the persons or groups who choose them, the procedures to be followed in making the choice and their tenure.
Every constitution must have provisions dealing with citizenship and those who qualified to exercise the suffrage.
The fundamental rights of the citizens must be specified in the constitution and their freedom to act according to democratic principles should be guaranteed.
There should be a section of the constitution that deals with the organisation, powers and functions of local government.
Every constitution must have sections that provide for interpretation, citation and commencement of the constitution.
It is necessary for a constitution to have schedules. Schedules are usually found at the tail end of constitution and they provide additional information about certain provision of the constitution.
Constitution may be written or unwritten, flexible or rigid. These competing concepts have come about largely because of the nature of the British constitution, which is often said to be unwritten. how far it is unwritten is an entirely different matter.
The following functions are performed by constitution.
A constitution ensures the certainty of rules. That is, a constitution helps to reduce the uncertainties of political life to a minimum. The constitution clears all ambiguities and provide answers to such concerns such as how public officials should be chosen; which officials should exercise certain powers; the extent of their powers and what light the people made legally claim against the actions of the executive, legislature and the judiciary.
The constitution helps to regulate and distribute power among the various organs of government. It therefore helps to prevent arbitrary use of power since the constitution does not allow power to be concentrated in one hand.
The constitution provides a machinery for resolving disputes between the state and the individual, between various organs of government and between individual and individual. That is, the constitution, through the court system, helps to solve certain problems in the political system.
The constitution protects and guarantees the rights and liberties of the citizens. The constitution has provisions on the rights and freedoms of the citizens and it establishes institutions such as the court and the ombudsman to protect citizens rights.
The constitution provides the basis for political legitimacy and also ensures that duties and obligations to the state are performed.
The constitution promotes ideological development. That is, it makes it possible for a country to set up a programme for the people within the state to achieve their ideal objectives.
It helps to prevent arbitrary use of power. The constitution provides for separation of powers and checks and balance and these are important at ensuring that no arm of government can usurp the powers of the other.
The constitution has a symbolic value as it makes for the recognition of the statehood of a country. In new states such as Nigeria, the constitution helps to distinguish the independent state from colonial territories.
It provides for a fresh starting point after a period of colonialism, civil war, revolution or military coup de tat. New constitutions are usually drawn up to usher in the new era.
The constitution have a propaganda value. For example, non-compliance with the provisions of a constitution implies that the person who breaks the law ought to be punished. non-compliance leads to interpretation and interpretation leads to enforcement..
The constitution provides a sense of direction. For example; the 1999Constitution of Nigeria makes it clear in Section 1 (2) that a military coupe is illegal and unconstitutional. Section 10 prohibits any state religion. Thus, any person or group, who organises a military coups against the Nigerian state or intends to turn it into a theocratic state, is acting unconstitutionally.