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POL 111 ELEMENTS OF POLITICAL SCIENCE

UNIT 4 CONSTITUTION AND CONSTITUTIONALISM

POL 111 MODULE 2

3.0 MAIN CONTENT 3.1 Constitution

In the modern world, there is no country that does not have a constitution; being a body of fundamental laws by which a country is governed. It is inconceivable that the modern government, with all its complex apparatus can operate without a constitution. Even in the pre-modern societies with its less elaborate institutions, a constitution would still be needed, otherwise the simple task of law making, execution and adjudication would still be less precise, or lack proper delineation, if not problematic. A constitution is therefore a fundamental prerequisite for the political stability, economic well being and social cohesion of a country. A constitution provides the framework and principles, which governs the organization of government, its institutions, the nation‟s political philosophy and aspirations as well as the relationships between the citizens and the state.

Literarily, a constitution is the system of laws and basic principles that a state, a country or an organization is governed. A constitution in general terms, is the body of rules which directly or indirectly affect the distribution of power or the exercise of the sovereign power in any nation -state. Classically, it is the collection of principles according to which the powers of the government, the rights of the governed and the relations between the two are adjusted (Bello Imam; 2007:1). The word constitution has been defined in different ways by scholars. A. V. Dicey explained that a constitution is meant to be a document having a special legal sanctity. According to Austin Ranney (cited in Ojo, 1973),“a constitution is a whole body of fundamental rules, written or unwritten, legal and extra legal according to which a particular government operates”.

According to the Black‟s Dictionary, a constitution is the organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to conform, organizing the government, regulating, distributing as well as limiting the functions of its different departments/organs.

Constitutionalism

Constitutionalism deals with the rule of law. What this suggests is that a government, which a constitution sets up, should conduct itself in accordance with the rule of law and not rule of men. In other words, it must operate according to agreed procedures. S. N. Ray (2006: 109) defines constitutionalism as “a body of normative thought which seeks to realize by means of institutional arrangements, the dominant values...” of a political system. Constitutionalism therefore stands for the principle that the exercise of political power shall be bounded by rules, and with the objective of curbing arbitrariness of political power.

Put differently, constitutionalism is government by limitations, both

procedural and substantive. And as W. G. Andrew (1961:13) observes under a constitutional government, power is proscribed and procedure prescribed. In short, we can say that a constitutional government is the antithesis to a dictatorship.

Constitutionalism is also based on the principle of shared power. Shared power exists when several independent power-holders or state organs participate in exercise of political power and the power assigned to each organ is subject to reciprocal control (Ray, 2006:110). It should however not to be misconstrued that constitutionalism is restricted to adherence to codified or written constitution. Rather it also embodies respect for the unwritten customs and conventions as practiced in the British democracy.

SELF-ASSESSMENT EXERCISE 1

Explain the difference between Constitution and Constitutionalism.

3.2 Types of Constitution i. Written constitution

When a Constitution is described as written, it means that the body of rules and regulations by which a country is governed is written or

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POL 111 MODULE 2

codified in a single document that can be consulted. This presupposes that the Constitution becomes a document through a process that involves (or accommodates the views of) the majority of the people who participate either directly or through their representatives in drafting, debating, reviewing and adopting the contents of the document before it can be regarded as the fundamental laws of a nation. The American Constitution readily satisfies this requirement since it originated from the Constitutional Convention held at Philadelphia in 1878. To some extent, the 1979 Nigeria Constitution can also be regarded as having partially met this requirement since it originated from the Constitution Drafting Committee of „49 wise men‟ set up by Gen. Muritala Muhammed regime in 1975. The draft was debated by a group of elected Nigerians from each Local Government Areas in the federation called „Constituent Assembly‟ that was put in place by Gen. Olusegun Obasanjo in 1975. The document was promulgated into law through a decree enacted by the Supreme Military Council (Ojiako, 1979). The major difference is that unlike the United States‟ Constitution that was ratified by nine of the thirteen pioneer states in the country, while that of Nigeria was not subjected to a referendum or a plebiscite.

We can now identify the salient features of a written Constitution as follows:

1). It usually contains a preamble at the beginning, which is a statement expressing the essence, goals, aspirations and vision of the people of the country. It is otherwise known the spirit of the Constitution.

2). It also specify the organs of government, defines their respective powers and their relationships with one another, including the eligibility requirements before individuals can occupy positions in government.

3). A written Constitution usually states Fundamental Human Rights such as freedom of speech, freedom of association, freedom of movements as listed in Chapter IV, Sec. 33-45 of the 1999 Constitution of the Federal Republic of Nigeria. It also contains their limitations and safeguards, including the obligations the citizens in a state owe to themselves and the state (Awolowo, 1966).

Most written Constitutions like those of the USA and Nigeria do contain elaborate procedure for their amendments, which often make most written Constitutions to be rigid from the point of view of the stringent process of altering or changing them.

Section

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POL 111 ELEMENTS OF POLITICAL SCIENCE

9(1-4) of the Nigerian Constitution, 1999 states the cumbersome mode of altering the provisions of the Constitution.

4). The power sharing arrangement is also enshrined in a written Constitution. For instance, the Second Schedule, Parts I and II of the Nigerian Constitution, 1999 contains the Legislative Powers shared among the Federal, States and the Local Government Councils under the Exclusive, Concurrent and Residual powers.

5). The document gives the Federal government the powers to legislate on all items under the Exclusive List; while both the Federal and State governments can legislate on every item under the Concurrent Legislative List, only the Local Councils have Residual Powers over items not listed under the two Legislative Lists.