Constitution and Constitutionalism – SS1 Government Lesson Note (Second Term)

A constitution is the body of fundamental laws, customs, conventions, principles and rules by which a country or an organisation is governed.

Behavioural objectives

By the end of the lesson, students should be able to:

1. define a constitution and constitutionalism;
2. list the sources and features of a constitution;
3. distinguish between written and unwritten, and between rigid and flexible constitutions;
4. explain federal, unitary and confederal constitutions and give examples of each;
5. state the advantages and disadvantages of each type of constitution.

What does a constitution do?

A constitution sets out how a government works and what citizens may expect from it.

• Government: it states the work and functions of the government or organisation.
• Officials: it states the functions of the officials of the government.
• Citizens: it states the rights and duties of citizens or members.

What is constitutionalism?

Constitutionalism is the practice of governing according to the constitution, so that the powers of government are limited by law.

• Supremacy of the constitution: no person or office is above the constitution.
• Rule of law: everyone, including leaders, is equal before the law.
• Limited government: the powers of rulers are defined and restricted.
• Separation of powers: the executive, legislature and judiciary have separate roles.
• Fundamental human rights: the rights of citizens are protected.
• Independent judiciary: courts can interpret the constitution without interference.
• Free and fair elections: leaders are chosen and changed peacefully at regular intervals.
• Accountability: office holders answer to the people for their actions.

What is the difference between a constitution and constitutionalism?

What are the sources of a constitution?

There are ten main sources of a constitution.

1. Past experiences: the historical, social, economic and geographical experiences of a country.
2. Acts of Parliament: bills passed into law by parliament.
3. Decrees: laws made by military governments.
4. Judicial precedents: important judgments of higher courts such as the Supreme Court.
5. Customs and norms: accepted practices that are not written down as part of the constitution.
6. Conventions: unwritten rules of behaviour, and the people show disapproval when they are broken.
7. Constitutional conferences: meetings held in London and in West Africa before independence for Ghana, Nigeria, Sierra Leone and the Gambia.
8. International laws: laws, treaties and conventions made by international organisations such as the United Nations.
9. History of the people: historical documents such as the Magna Carta (1215) and the Bill of Rights (1689) in Britain.
10. Intellectual works: the writings of thinkers such as Locke, Marx, Hobbes and Dicey.

What are the features of a constitution?

The features of a constitution are the standard parts found in most constitutions.

• Preamble: an introduction that states the ideological stand of the constitution.
• Political structure: it states whether the government is unitary or federal and divides powers among the units.
• Organs of government: it names them, and states their functions and relations to one another.
• Political stability: it states how government can be changed peacefully.
• Rights and duties: it states the rights and duties of citizens.
• Protection of liberties: it protects the rights and freedoms of individuals.
• Tenure: it states how long a government can stay in office.
• Amendment: it states the process by which it can be changed.
• Limit on power: it prevents leaders from becoming too powerful and dictatorial.
• Symbol: it stands as a symbol of nationhood and sovereignty.

What are the types of constitution?

Constitutions are classified in three ways: by form (written and unwritten), by ease of amendment (rigid and flexible), and by distribution of power (federal, unitary and confederal).

What is a written constitution?

A written constitution is one in which the fundamental laws of a country are written and codified in a single document.

• Examples: Nigeria, USA, India, France, Canada, Sierra Leone and the Gambia.

Features of a written constitution

• Single document: all the laws are found in one place.
• Preamble: it begins with an introduction.
• Amendment: it states the method and conditions for change.
• Rights and duties: it spells out the fundamental human rights and duties of citizens.
• Rigidity: it is usually rigid.

Advantages of a written constitution

• Easy to consult: it can be obtained and read as a single document.
• Settles disputes: it is easy to refer to when a dispute arises.
• Known rights: lawyers and ordinary citizens can read it to know their rights and duties.
• Clarity: it removes the ambiguity of an unwritten constitution.
• Amendable: it can be changed when the need arises.
• Minority protection: the interests of minorities are protected.
• Stability: it defines the powers of government and how to use them, so it reduces conflict.

Disadvantages of a written constitution

• Rigidity: most written constitutions are rigid, which creates problems with amendment.
• Disaffection: it may cause discontent if it does not favour some sections of the country.
• Out of date: unless it is amended often, it will not meet present and future needs.
• Powerful judiciary: the courts may become too powerful because they interpret it.
• Slow: amendment takes a long time.
• Costly: the amendment process may be expensive.

What is an unwritten constitution?

An unwritten constitution is one whose fundamental laws are not codified in a single document, although some parts may be written down.

• Examples: Britain and New Zealand.

Advantages of an unwritten constitution

• Flexibility: it adapts easily to changing socio-political and economic conditions.
• Quick decisions: it allows decisions to be made fast.
• Easy amendment: it does not pose problems for change.
• Compromise: its non-rigidity encourages compromise between organs of government.
• Meets needs: it can serve present and future needs.
• Easy to interpret: its flexibility makes interpretation easier.
• Emergencies: it is suitable in times of emergency.

Disadvantages of an unwritten constitution

• Abuse: the government and individuals can abuse it because the laws are not in one document.
• Dictatorship: it can encourage dictatorship.
• Unknown rights: individuals find it hard to know their duties and rights.
• Rights violation: it encourages the violation of citizens’ rights.
• Federal systems: it does not suit a federal system of government.
• Instability: it does not encourage stability, especially in big countries.

What is the difference between written and unwritten constitutions?

What is a rigid constitution?

A rigid constitution is one that cannot be changed easily because its amendment procedure is strict and cumbersome.

• Link to written constitutions: rigid constitutions are normally written, but not all written constitutions are rigid.
• Sections: not every section of a rigid constitution is difficult to amend.
• Examples: USA, Australia, France, Nigeria, Sierra Leone and the Gambia.

Advantages of a rigid constitution

• No hasty action: it is hard to change, which prevents rash amendments.
• Checks dictators: leaders cannot easily amend it to serve selfish interests.
• Minority protection: it protects the interests of minority groups.
• Stability: no section can amend it in its own favour.
• Clarity: it removes constitutional ambiguity.
• Fear of domination: it eases fears of domination by majority groups in a multi-ethnic nation like Nigeria.

Disadvantages of a rigid constitution

• Cumbersome: amendment is strict and difficult.
• Emergencies: it makes quick action hard in times of emergency.
• Violent change: it creates room for revolution or civil war.
• Costly: a referendum for change costs much money, time and energy.
• Slow growth: amending it may slow economic growth and development.

What is a flexible constitution?

A flexible constitution is one that can be changed easily, usually by a simple majority and without strict procedures.

• Form: some flexible constitutions are written and others are unwritten.
• Examples: Britain and New Zealand.

Advantages of a flexible constitution

• Easy to amend: change needs no strict procedure.
• Emergencies: quick action can be taken.
• Peaceful change: it does not encourage revolution or civil war.
• Low cost: amendment is not expensive, slow or tiring.
• Renewal: old rules can easily be replaced with new ones.

Disadvantages of a flexible constitution

• Hasty change: it can be amended thoughtlessly.
• Dictatorship: leaders can easily amend it to suit their whims.
• Instability: one section of the country can amend it in its own favour.
• Ambiguity: it is surrounded by constitutional uncertainty.
• Ethnic fears: it does not ease fears of domination by majority groups.

What is the difference between rigid and flexible constitutions?

What is a federal constitution?

A federal constitution is one in which power is shared between a central government and the governments of the component states, each independent in its own sphere.

• Federal system: a country that adopts this type of constitution.
• Examples: USA, Nigeria, Germany, Brazil, Switzerland, Australia and India.

Features of a federal constitution

• Division of powers: powers are shared between the central government and the states.
• Supremacy of the constitution: the constitution is the highest law.
• Source of power: each level of government gets its powers from the constitution.
• Rigidity: it is usually rigid.
• Judicial review: the courts interpret the constitution.
• Bicameral legislature: it allows a legislature of two chambers.
• National matters: the central government handles matters such as defence and foreign affairs.
• Duplicated organs: the organs of government exist at both central and state levels.

Why do countries adopt a federal constitution?

• Ethnic diversity: it suits a multi-ethnic nation.
• Language: it takes care of linguistic differences.
• Unity: it joins different groups into one federation.
• Security: a common central government gives strong security.
• Stability: it helps to maintain political stability.
• Population and size: it suits a large population and a vast area.
• Economy: the need for economic stability makes it necessary.
• Minority fears: it answers the fear of domination of minorities by majority groups.
• External threats: it answers the fear of external aggression.
• Religion, race and culture: it takes care of differences in religion, race and culture.

Advantages of a federal constitution

• Unity: it unites people from different political, social and geographical areas.
• Independent judiciary: it maintains the independence of the courts.
• No monopoly of power: power is not held by one group.
• Minority protection: it protects the interests of minority groups.
• Security: it guarantees strong security and eases fear of external aggression.
• Representation: it makes room for wider representation of the people.
• Stability: it maintains political stability among diverse ethnic groups.
• Competition: it encourages healthy competition among states.
• Employment: more governments create more jobs.
• Checks and balances: they prevent tyrannical use of power.

Disadvantages of a federal constitution

• Emphasis on differences: it stresses the differences among ethnic groups.
• Weak centre: it can create a weak central government.
• High cost: duplicated governments increase expenditure.
• Sectionalism: it increases sectional consciousness.
• Rivalry: political rivalry can lead to instability.
• Secession: it can increase the risk of secession.
• Census and elections: it can lead to inflated census figures and election rigging.
• Revenue sharing: it creates problems in sharing the national cake.

What is a unitary constitution?

A unitary constitution is one that concentrates authority in a single central government and does not share power with any other government.

• Examples: Britain, New Zealand, Sweden, Sierra Leone and the Gambia.

Advantages of a unitary constitution

• Flexibility: it is usually flexible and easy to amend.
• Quick action: decisions are made fast.
• Adaptable: it adjusts easily to changing conditions.
• Low cost: it is less expensive to run.
• Internal stability: it creates room for stability.
• National unity: it promotes unity and the spirit of nationalism.
• No waste: government is not duplicated, so human and material resources are saved.
• Strong centre: powers are not divided, so the central government is stronger.

Disadvantages of a unitary constitution

• Narrow participation: the scope of political participation is small.
• Little local control: there is little room for local autonomy on customary issues.
• Dictatorship: a dictator can emerge.
• Interest groups: it may not tolerate them.
• Rights: citizens’ fundamental rights may not be guaranteed.
• Selfish amendment: it can easily be amended for selfish reasons.
• Abuse of power: political power can be abused.
• Secession: domination by one group may lead to a wish to secede.

What is a confederal constitution?

A confederal constitution is one in which almost all major powers are reserved for the component states.

• Central government: it holds power only over matters such as common currency, defence and foreign affairs.
• Example: the Senegambia Confederation of Senegal and the Gambia (1982 to 1989).

Advantages of a confederal constitution

• Mutual benefit: member states gain in areas of common interest.
• Voluntary union: no state is forced to join, and states can secede at any time.
• One government: citizens obey only the government of their own state.
• Unity of independent states: big and small, rich and poor states come together for a common purpose.
• Equality: all member states are equal, and none can claim superiority.
• Internal control: states have full control over their internal affairs.

Disadvantages of a confederal constitution

• Instability: confederations bring political instability.
• Weak centre: there is no effective central authority, since sovereign power rests with the states.
• No nationalism: there is no strong spirit of nationalism.
• Secession: the right to leave can break up the union.
• Loose union: it is a loose union of sovereign states.
• Weak implementation: agreed policies may not be carried out in the member states.

What is the difference between federal, unitary and confederal constitutions?

Evaluation

1. Define a constitution and constitutionalism.
2. List five sources of a constitution.
3. Distinguish between a rigid constitution and a flexible constitution.
4. State three advantages and three disadvantages of a federal constitution.
5. Explain the following terms: (i) Acts of Parliament (ii) Preamble (iii) Judicial precedents.

Assignment

Distinguish between a constitution and constitutionalism, then explain any four features of a written constitution.