A constitution is said to be written when the most important constitutional laws are enacted or are formally approved and put in a single document. In the modern sense, to administer a state without a written constitution is to say that the state is uncivilized. But this is not to say that Britain, Israel and New Zealand which have unwritten constitutions are uncivilized.
The first written constitution was the American Constitution which was first drafted in 1777. The founding fathers of the American state used the rules and regulations to regulate the relationship among the component states, to define the various organs of the state and to set limits on their powers.
The second drafted constitution was the French Constitution of 1789, which identified the triple principles of equality, fraternity and liberty. By stating what is principle meant, the French were attempting to write the rules governing the state.
It is this approach of the French, which makes Tom Paine in his book, The Rise of Man to state that a constitution is a thing antecedents to a government. In other words, a government is a creation of the constitution. In this sense, a constitution is not an act of government but of the people constituting a government. And a government without a constitution is like power without right. This profound formulation calls to question the appropriateness relevance of Nigeria’s 1999 Constitution which was decreed by the Abdulsalamiregime with little input from the government and the national assembly to amend the constitution are wrong-headed. It is like cutting the cart before horse.
Why It Is Necessary To Have A Written Constitution
Constitutions are written down for a number of reasons. They include;
The major political events which shape the system of government in a country make it necessary to change and document the corresponding new rules and regulations. For example, the conferment of independence of Nigeria in 1960 acquired new laws to govern the country from that year and this was why the 1960 Constitution was promulgated.
A successful revolution, whether violence or peaceful, calls for the written down of the rules which the new political leaders wish to use to govern the state. For example, as a result of the October 1917 Revolution in Russia which led to the establishment of the first socialist state in the world, a new constitution was promulgated.
The conquest of new States or territories may necessitate the promulgation of a new constitution.
The creation of new states or the integration of existing states into a single state may also call for the writing of a new constitution.
Advantages Of Written Constitution
The advantages of a written constitution include the following:
Since a written constitution is in the form of a book and it is dated, the people can easily refer to it to know their rights and assert their rights.
A written constitution prevents arbitrary use of power since the constitution is clear concerning the powers and functions of the political leaders and the limitations on the exercise of their powers.
It helps to protect the rights of the citizens. Every written constitution has a section dealing with the fundamental rights of the citizens and the citizens can go to court to assert their rights where they are violated.
It is difficult, if not impossible, to govern a state and complex state, like United States of America, without a written constitution.
A written constitution is clear and specific and gives the people confidence. It has provisions dealing with sundry issues which directly or indirectly affect the lives of the people. Constitutions deal with cooperation and conflict resolution, separation of powers, checks and balances, and fundamental rights of the citizens among other things. This principles prevent abuse of power, tyranny and oppression.
A written constitution has certain disadvantages, which may, however, significantly diminish its usefulness.
It may be difficult to amend a written constitution in times of political crisis or emergency
It is very expensive to operate and amend a written constitution. all the attempts by the Federal Government of Nigeria to amend the 1999 constitution since return to civil rule, for example, have been largely futile not only because of the difficulty of getting the required two-thirds majority of members of the National Assembly and the State House of Assembly to support any amendment but also because of the mutual suspicion among the contending interests about the motive of those sponsoring the various amendments. The few amendment, made to the constitution in 2010 were largely necessitated by the crisis emanating from the absence of late President Umaru Musa Yar’Adua from the country for several months in 2010 on account of ill-health.
A written constitution is not suitable for a country where complete all parts are in a illiteracy exists. A constitution is generally difficult to understand even by the averagely educated people.
As society is dynamic, the provisions of a written constitution may not be able to meet the present or future needs of the people.
A written constitution tends to give judges a lot of room to make precedents or judge-made laws through the interpretation of constitutions, but this amounts to the usurpation of the constitutional power of the legislature to make laws.
In a federal state, the written constitution is always problematic, as it does not actually satisfy the interest of all the contending groups; indeed some are offended by some provisions. The 1999 Constitution of Nigeria, for example, has been severely criticised by virtually every section of the Nigerian society. In particular, the people of the South-South geo-political zonefeel solely offended by the provision, which gives 13% to the derivation where as derivation was used for sharing 50% of all federally collected revenue under the 1963 Constitution. Moreover, the South generally prefers a decentralized federal system while did not tend to favour centralization of government activities. It would therefore be foolhardy for anyone to expect the hegemonic function of the Nigerian ruling class to easily give political support to any agitation for issues like state police, fiscal federalism, increased revenue allocation to lower level governments, and welfare programmes for the poor.