CHAPTER SIX
CONSTITUTION: DIVERSE CONCEPTIONS AND MEANING
Introduction
In this topic our main concern will be to understand what the constitution is and how important it
is to the state. We shall answer the questions.
what is a constitution
types of the constitution
Theories of constitution & functionalities.
importance of the constitution
Meaning
- A constitution is a body of aggregate fundamental principles and precedents that
collectively constitute the legal basis of a polity or state.
- In the other words a constitution is a body of rules established to regulate the system of
government within a state.
- Generally constitution can be written or unwritten as long as it is known and seen to work
in organizing the state.
- As well a constitution may be that is written and arranged or compiled together to form
one document o it may be that which has many documents, conversion, legislatures or
treaties.
- In regard to this, India has the longest written constitution with 444 articles and 22 parts.
- It has had 118 amendments.
- Monaco has the shortest constitution in the world with 97 articles, 10 chapter and 3,814
words.
- On the same note, Kenyan constitution has 264 articles…18 chapters. It is a fairly moderate
constitution.
History of the Constitution Making
Ancient Period.
The making of constitution is thought to be date back to antiquity, that is, in the ancient times. It
is said that the oldest constitution is that which was written in 2050BC it was named the code of
UR-NAMMU of UR.
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- It was followed by code of Hammurabi of Babylonia. Later we see Assyrian code being
developed and finally Mosaic law.
- Perhaps worth knowing and noting in 621BC whereby a Scribe by name DRACO wrote
cruel oral laws of the city of Athens. The code prescribed death penalties to minor offences.
It is from this man that we have the origin of modern terminology, that is, DRACONIAN
RULE to mean rules that oppress and intimidate or harass.
Aristotle
Around 350BC, Aristotle made a distinction between ordinary law and constitutional law.
He further developed the idea of constitution and constitutionalism. It is based on this that Aristotle
reflected on the forms of governance and classified them into three best forms and three worst one.
On one side the best one comprised on Monarchy, Aristocracy and polity and of the other side
stood three forms of worst forms of leadership which are tyranny, oligarchy and democracy.
He finally analyzed the constitution of Athens, Sparta and Carthage and conducted that the best
form of constitution is that which advocated mixed system where monarchy, aristocracy and polity
where applied in the state.
Middle Ages After 1100
In the middle ages, we realize that in England Henry 1 proclamation of the Charter of Liberties
in 1100 bound the King for the first time in his treatment of the clergy and nobility.
Later king John was forced to sign Magna Carta in 1215 which was the first documents on
habeas corpus.
Modern Constitutions.
As early as 1639 the colony of Connecticut adopted fundamental orders which became the first
the first north-American constitution. This made Connecticut to be named a constitution state.
Other States of British colonies in North America adopted their own constitutions in 1776 and
1777. In particular, Massachusetts adopted their constitution in 1780 after the independence of
America in 1776.
Lastly, as time went by, the constitution of Enlightenment were written by great philosopher of
the modern period like Thomas Hobbes, John Locke and Jean Jacques Rousseau.
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This model of the enlightenment constitution proposed that the constitutional governments should
be STABLE, ADAPTABLE, ACCOUNTABLE, OPEN AND SHOULD REPRESENT
PEOPLES WILL.
Types of Constitutions
1) Codified Constitution
- A codified constitution is a type of constitution that is written and found any in one
documents.
- It is contained in single documents and thus is the only single source of censtitional law in
a state.
- Such constitution are product of a dramatic political change such as revolution.
- Scholar criticize such constitution as one that has high constitutional turn over and can be
a detrimental to separation of powers and Rule of law.
- Second states with codified constitutional give emphasize to constitution form than any
ordinary statute law.
- They give constitutional supremacy to the codified document.
- If the other statute conflict with the constitution, they are rendered or declared utra vires
and struck done as unconstitutional.
- In such constitutions, special regard is given to the constitution such that even to change
or amend it requires special constitutional assembly i.e. supermajority, referendum process.
- Thus this makes such constitutional is cumbersome to amend.
- Another characteristics of codified constitution is that it has a set out preamble which points
out what is cherished by the state i.e. reference to God, culture, diversity, heritage,
democratic value and human rights. For example Australia, Kenya has such constitution
- Codified constitution is also referred to as written constitution.
2) Flexible and Inflexible
Inflexible constitution is that which poses a great challenge in amending it. It is such that to
amend it one requires extra and special arrangement. It contains entrenchments which safe
guard it from undue and unnecessary amendment. For instance, USA constitution, Canadian
(1982) constitutions
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Flexible constitution is the one which allows amendment to be done with a lot of easiness. For
instance, it is easy to amend British constitution by use of only parliarment. This is because they
have non-entrenched constitution which can be amended by act of parliament.
Some constitution have stated that under no circumstance can some articles or chapters be
amended. Due to that, such constitution are regarded absolutely entrenched they have
ABSOLUTE ENTRENCHMENT and this is technically regarded as STRONGEST
CONSTITUTIONS.
3) Monarchical and Republican Constitution.
A monarchical constitution is the one where head of the state is a Monarch. The political power
lies with the prime minister. In some places like Britain, the power of the monarch is limited and
the queen reigns in accordance with the constitution.
Here the prime minister is the political figure, and head of government. The Monarch is the head
of state
Republican constitution is the one in which the president is the head of state and he is elected by
the people based on the laws. He is also the head of government.
President = state & government
4) Presidential and Parliamentary Constitutions
Presidential constitution is that constitution that places the power on presidency. It concentrates
power and authority on the president to appoint the ministers, the judiciary offered etc. The
president is the head of state & executive branch of the government. He is not the head of
parliament and he is not accountable to them. Another feature is that the president is not a member
of House of representative or senate. Both the executive and the legislature are elected by the
citizens. This is mostly what happens in many countries. Kenya, Uganda and Tanzania
A parliamentary system or parliamentary democracy is a system of democratic governance of a
state (or subordinate entity) where the executive derives its democratic legitimacy from its ability
to command the confidence of the legislature, typically a parliament. This ideally means that such
system recognizes that in order to be in executive you must have been gathered confidence of the
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people through election. In such system head of government is also held accountable to that
parliament. The constitution that supports this is called parliamentary constitution.
Parliamentary constitution is totally different. The head of executive branch of the government
is the prime minister who will also be head of executive. He is a member of legislature branch of
government. He is censured by parliament. The constitution declares that the citizens must elect
legislatures from where selection of executive is gotten. This is to assure the spirit of parliamentary
democracy.
Critical points
Parliamentary system is the most inefficient way of ruling the country as there is unclear
separation between the legislative and executive.
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Presidential system is advantageous for democracy because of the separation of powers, role of
judiciary and the accountability of the government by its people.
Presidential system and its benefit
1. People directly elect their President where in parliamentary system majority party
chooses a candidate
2. President gets a full term as compared to Prime Minister who can taken out through a no
confidence vote also he will still be a member of parliament even after being technically
sacked
3. Judiciary and President have completely separate powers and judiciary can review a law
as unconstitutional where is in parliamentary system executive and legislature work very
closely which leaves no room for judiciary to review
4. President chooses his own team which normally comprises of specialists where as in
parliamentary system they have to choose traditional politicians which leaves gaps in
performance
5. A President can be an party outsider and doesn’t required to hold an office previously on
the flip side you have to pick whoever is in the party
6. Government is more accountable in Presidential system while in parliamentary system
you can bury a lot of corruption in the collusion with other parliamentary members and
even with opposition in some cases
5) Federal and Unitary Constitutions
What is a federal constitution?
First, in a federal form of government, the central government shares its powers with the various
constituent units of the country. For example, in India, power is divided between the government
at the Centre and the various State governments. This is contrary to the unitary form of
government, all the power is exercised by only one government
US is a typical example of federated system. Its constitution is said to be federal.
In this system, there is recognized into constitution central government and federal government.
The state has legislature mandate, it has also its executive and judiciary branch. This is the case
for USA, Australia, SA and Canada.
Unitary constitution is a system which is governed constitutionally as one single unit, with one
constitutionally created legislature. In Unitary Constitution the provinces are subordinate to the
centre, but in federal constitution, there is a division of powers between the federal and the state
governments. This is the one that recognizes the centrally governed united kingdom where
devolution has given power to wales, Scotland, northern Ireland.
6) Political and Legal Constitution
Political constitution is associated with holding to account those who hold political power. This is
because they are the only one mandated to make or legislate laws. It is only when parliament
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legislates that the laws becomes legitimatized. This is common in Britain constitution that
recognizes majoritarianism, that is, elected majority to pass any law through majority vote.
Legal Constitution such as American one, empowers the courts especially constitutional court to
establish the limits of government power.
Political constitution defend their position saying that politics is the best way to exert government
control because government should be entrusted to judiciary.
Fundamental Principles of the Constitution
Throughout the world especially in the modern time/contemporary, the emphasis of on proper
essential and funding principles when making a constitution has become necessary and imperative.
The measure of a constitution in terms of how, outstanding and vibrant it is in shaping by working
at how it incorporates the fundamental principal.
These principles of the constitution guard against the possibility or likelihood of coming up with
a law that is retrogressive, non-evolutionary draconian as seen early. Constitutions one categorized
on this point as either being evolutional democratic and dynamic as opposed to being retrogressive,
undemocratic and static.
Some of these principles are:
a) Popular sovereignty popular well sovereignty of the people.
This is one of the principle’s which is fundamental in constitutional making throughout the world.
By this is meant that the constitution is a promotional is meant that the constitution is a product of
the people communities having in a particular country/society. It is a product of people aspirations,
goals, purpose, values, experiences, expectation and final longing of their society. It is the radiation
of agreed, concerted and mutual understanding.
In Kenya, Constitution (2010) this fact is manifested in Art1.1 which states that, “All sovereign
power belongs to the people of Kenya and shall be excessed only in accordance with this
constitution”.
(Art2). The Constitution is the supreme law of the Republic and binds all persons an all state
organs. This principles is people related and it was also in the preamble of USA Constitution-“we
the people United States do ordain establish theirs constitution… popular.
Popular sovereignty has the idea that the government draws its power from people, all the laws are
the expression of people’s will.
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b) Limited Government
The idea of limited government is one of the most fundamental reforms of modern times. It means
that no government should act from imperialist, but only from the law that is granted by the people.
The people are sovereign and not government. USA rejected and had strong opposition to any
government with tyrannical tendency. Limited government does not mean ineffective, or lay back
government.
c) Role of Law
This principle implies that only the law is the guiding principle. The constitution is the one which
makes everybody equal all should oblige it and follow it.
d) Separation of Power
The principle obliges that the government power should be split between different branches, that
is, legislative, executive and judiciary. Legislature should to make the law, Judiciary to interpret
the law and protect its sanctity. The executive-to enforcement the law. The reason for this is that
NO ONE BODY SHOULD MAKE, PASS AND ENFORCE the law.
In USA, all legislation power shall be done by congress (house of Representative and senate). This
is to circumvent tyranny (all executive power is vested in the president while judicial power of
USA is vested in the Supreme Court.
e) Check and Balances
It is closely related with separation of power. It is meant to protect any organ of state to be
tyrannical. Checks and balance helps assess and monitor each other by requiring that each and
every organ must interdepend of the other. This is done by either passing or stopping the law. The
legislature, the judiciary and the executive must work in proper checks and balances.
f) Judicial Review-
This is the principle that all action of executive and legislature are subject to review by the
judiciary. In the review there are two possible circumstances. Action can be in order or
disapproved. Judicial power shall extend to all cases in laws and equity arising the constitution.
This act is important in that it is a form check and balances.
g) Republicanism
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This is one of the greatest to element in governance of many countries that uphold democracy. It
hold that power must emanate from the people and the power of a government cannot reign with
extreme power. The people are always represented in government in any decision making.
h) Rights and Fundamental Principle
Constitutional throughout the world are measured on the extent to which it guarantees rights and
fundamental freedoms. In USA, rights are so fundamental that they are the yard stick for measuring
democracy. UN uphold that all constitution must protect the rights of individual and freedom
(UNUDHR) United Nation Universal Declaration of Human rights.
It is on this basis that the Kenya’s constitution chapter 4 from art 26 – 54 gives specific rights
which are protected by the constitution.
I ) Presumption of Innocence in Law
There are two types of law systems or litigation process.
a) adversarial – British – where you are presumed innocent until proved guilty.
b) Inquisitorial – you are presumed guilty till you prove yourself innocent.
This is one of the principles which guide the setting and framework of any constitution the
jurisprudence of a given law system is critical.
RECAP
What is a constitution?
A constitution is an aggregate of fundamental principles or established precedents that constitute
the legal basis of a polity, organisation or other type of entity, and commonly determine how that
entity is to be governed.
When do we say a constitution is written?
When these principles are written down into a single document or set of legal documents, those
documents may be said to embody a written constitution; if they are written down in a single
comprehensive document, it is said to embody a codified constitution.
What is the example for a federated constitutional state?
US is a typical example of federated system. Its constitution is said to be federal.
In this system, there is recognized into constitution central government and federal government.
The state has legislature mandate, it has also its executive and judiciary branch. This is the case
for USA, Australia, SA and Canada.
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What is the practical example of uncodified constitution?
Some constitutions (such as that of the United Kingdom) are uncodified, but written in numerous
fundamental Acts of a legislature, court cases or treaties.
What is evolved Constitution?
An evolved constitution is the result of the historical development. It is not framed at a particular
time. For example, the British Constitution has neither been enacted by any special Constituent
Assembly at a particular time nor has the Monarch given it to the people.
What were the 6 principles of the Constitution?
Understand the six basic principles of the Constitution: popular sovereignty, limited government,
separation of powers, checks and balances, judicial review, and federalism.
What is the oldest constitution in the world?
The Constitution of the United States is the world's oldest continuously-active codified
constitution, having been in force since 1789. Only half of all constitutions function continuously
for more than 19 years.
Which country has no written constitution?
Britain is one of only three major democracies in the world that lacks a written, codified
constitution
Which is the world's largest Constitution?
The Constitution of India. The Constitution of India is the longest written constitution of any
country in the world, containing 444 articles in 22 parts, 12 schedules and 124 amendments, with
146,385 words in its English-language version.
What will happen if there is no constitution in a country?
If there is no constitution, then there will be lack of rules and regulations. ... Justice will be
denied to the people and a chaotic situation will prevail in the absence of laws because
Constitution is the source of laws. In the absence of a Constitution it will be difficult for a
country to sustain in the long run
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