Constitution and

human rights
Objectives
Discuss the history of constitutionalism
Explain the supremacy of the constitution and the rule of law
• Discuss the structure of Zambian constitution
• Trace the history of the Zambian constitution
• Discuss the adoption of the constitution
• Outline and discuss constitutional reviews in Zambia
• Discuss Zambia’s Bill of rights
• Discuss the role of political parties in national constitutions
• Discuss the functions of Zambia’s Human Rights Commission
Definitions of constitution
• Is a frame of political society organised through and by means of law
and in which law has established permanent institutions with
recognised functions and definite rights.
• It is a collection of a number of written rules, customs, practices and
traditions of constitutional significance which gives the constitution
value once they are combined
• Is the organ of the state and regulates the relations of the various
state organs to one another and to the private individual
• Constitution is the rules relating to the rules that are written but not a
single document
• Principles according to which the powers of the government, rights of
the governed, and the relation between them are adjusted .(Woolsey)
• Aristole looks at the constitution as a way of life the state has chosen
for itself
• Bourier defines it as the fundamental law of the state, directing the
principles upon which the government is found regulating the
exercise of the sovereign power, directing to what bodies or persons
these powers shall be confined and manner of their exercise
• The constitution of a state is a body of rules and regulations written
as well as unwritten, where by the government is organised and if,s
functions.
• It is concerned of how power is divided between different institutions,
groups, persons and regions.
• It is a document in which the most important laws of the country are
authoritatively ordained
Aspects that make a constitution
• Frame of political society
• It stipulates how this political society is organized
• This should be done by law
• The law establishes the permanent institutions with recognised
functions and definite rights
• It distributes powers to the government
• Provides for the rights of the governed
• Regulates the relationship between the government and the
governed
• It is the foundation of the government
• Directs to what bodies or person these powers should be confined
and be exercised
What is a constitutional
Government?
• A state with a constitution is a constitutional state
• A constitutional state is one which has powers of government ,the
rights of the governed the relations between the two are adjusted
• A constitution government therefore means something more than a
government according to the terms of a constitution or what can be
referred to mere demarcation of enough safe guards against
encroachments which lead to tyrannical concentration of powers in
rule of law as opposed to arbitrary government, it means government
is limited by terms of the constitution, not a government limited by
desires and capacities of those who exercise power
• The separation of powers and check balances is an absolute
requirement for constitutional government and a mechanism within a
constitution for supervision for these functions
Description of constitutional law
• It deals with the distribution and exercise of the functions of
government and the relation of the government organs to each other
and the individual citizen
• They provide the foundation or the basis for the very existence of
governments
• Constitutions provide for the main or key institutions of
government ,and stipulated the powers the organs of , government
have
• The constitution comes before the government, as government is
borne out of the constitution.it establishes the organs of the
government i.e Legislature, Judiciary, Executive
THE STATUS OF THE CONSTITUTION
1) Supremacy of the constitution
Supreme law of the Land
It reflects the will and aspirations of the people of a particular state.
It is the most important document in the nation, and highest.
No other law is above the written constitution.
It is suppose to be the product of the exercise of the constituent power
inherent in any people.
It is an original constituent act from which other legislative acts derive
their power.
• 2) The subordination of all persons and organs
• Constitutions express positive attitudes enshrining higher values, creates
, define and confined the various organs or institutions of the state
• It follows that every individual and every organ of government is
subordinate to the constitution.
• a) the people
• b) parliament
• c) the president
• d) the subordination of all Legislation of the constitution
• 5) Factors that make constitution supreme
• It cannot be an ordinary law but functions to regulate institutions
• It is a product of the body which has power to make supreme law
from which ordinary law are made. Commands obedience
• It is the will of the people, therefore abiding upon every individual
• It guarantees the political system a legal status and it’s fundamental
features
• It determines and regulates the power of and relationship between
presidency, legislature and Judiciary
• Where government is decentralized ,the constitution also regulates
the relationship between the central government and the regions and
between governments at the regional and local levels
• It the constitution that can provide and secure a framework for
democracy, decentralization, and deregulation and for the
development of the country
• Being difficult to amend it gives security and reassurance to the
community. By restating common aspirations, it also provides a basis
for national identity.
• 6) The Legitimacy of the constitution
• How to make it command the loyalty, obedience and confidence of
the people.
• It should be generally understood by the people and can be
acceptable to them
• It should be put under the process of popularization
• People must be made to identify themselves with the constitution
• Views of Max Webber
• Legitimacy has been viewed from the standpoint of the rules, that is
whether they are accepted title to rule:
• a) through authority sanctioned either by tradition
• b) By faith in the leader . i.e charismatic authority
• c) through popular acceptance of the appropriateness of the system
of government
CONSTITUTIONALISM
• MEANING
• A limited government that is a government that operates within the
confinement of the constitution
• It is the limiting of the arbitrariness of political power that is expressed in the
concept of constitutionalism
• Refers to the ethic of complying with constitutional norms
• It is a body of rules ensuring fair play thus rendering the government
responsible
• It defines democratic governance guarantees individual rights and empowers
citizenry to use it as a living document that reflects their needs and
aspirations
The growth of the concept
constitutionalism
• No precise date
• Johari says the rise of a constitutional state is essentially an historical
process whose chief material is contained in the history of western
political ideas right from ancient to modern times
• Romans expanded an idea of constitutionalism with evolved
constitutions which was used as a determinate instrument of
government.
• Christianity introduced the element of theology to the concept of the
right to rule.
• This resulted in the laws of the state becoming submissive to the
authorities of the church as the ultimate law-provider through their
connection to the divine authority of God.
• The observance of religious injunctions became an essential part of
the idea of a constitutional state.
• This happened mainly in the middles and modern ages.
• During the early modern period (17th Century) a new consciousness
developed which rejected papal authority and witnessed the
emergence of the sovereign and secular nation-states.
• The concept of constitutionalism witnessed a rejection of theological
propositions and the justification of the absolute authority of the
state emerged.
• After a number of centuries the people fought and imposed restraints
on the power of the state. Examples include:
The Glorious Revolution in England in 1688,
The Declaration of American Independence in 1776
And the ultimate revolution of the French in 1789
• By the end of the 18th century, the concept of constitutionalism had
acquired a different character from that evident previously.
• A constitutional government now came to be identified with a
democratic government.
• The anxiety of the people in England, France and the United States of
America for more democratic systems of government caused
simultaneous changes in the concept of constitutionalism.
• For example, in the United States, the founding Fathers ensured that
their new country came with a written constitution to provide a
power map for the allocation of governmental powers and functions.
• A written constitution was enacted in 1787 and this set a precedent
for many other emergent nations as practically every nation has
followed the example provided by the United States.
• With the emergence of nationalism and the redefinition of the
boundaries of countries in Europe and the rest of the world e.g.
through colonialism, people around the world became more aware of
the need for constitutional government and an end to systems like
colonialism.
• The two wars also contributed to the development of the concept of
constitutionalism. A result of these wars, a new dimension was added
to constitutionalism which found expression in International Law.
• this law governs the relations between countries.
• The fundamental law of the land (i.e. the constitution) should specify
commitment of the state to the principles of internationalism like
faith in the settlement of disputes by peaceful means and observance
of the norms of international law and obligations.
• Constitutionalism has become an important part of any developing
country’s political dispensation since the 1970s with the West’s
emphasis on good governance to secure donor funding and bilateral
and multilateral support.
• Since the end of the Cold War, two developments have wrought
broad conceptualisations of constitutionalism:
a. The emergent of world citizenship whose content is to be found in
such international human rights instruments as the Universal
Declaration of Human Rights, the International Covenant on Civil
and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR).
b. The workings of international human rights supervisory
mechanisms, together with the international criminal tribunals and
the International Criminal Court which have produced human rights
jurisprudence. The jurisprudence is supplementary to the old
jurisprudence on constitutionalism.
• It is also important to note that another type of citizenship has been
emerging side by side with the world citizenship. This is the regional
citizenship. The members of the European Union have adopted
Federal Constitution that is currently the subject of public debate. The
African Union (AU) launched in Durban, South Africa in 2003 is aimed
at ripening into some political federation first foreseen under the
1994 Treaty Establishing the African Economic Community (AEC).
• East Africa however, decided to nurture the EAC until it become a
political federation consisting the three states of Kenya, Uganda and
Tanzania but now includes Rwanda and Burundi.
THE CHALLENGES FACED BY
CONSTITUTIONALISM
• The 1990s seem to have marked a critical high point for
constitutionalism, the rule of law and democracy in Africa. This
generated a new dawn and end to an new era of corruption,
authoritarian and incompetent dictatorship that had earned the
continent notoriety of political instability, civil war, famine, diseases,
and similar ills.
• One of the forces unleashed by this wind of change was a sort of
epidemic of constitutional making
• Due to pressure from both within and outside Africa, government
sought to re-establish credibility with external donors and satisfy
popular internal pressure by tampering or radically changing their
constitution.
• Although these new/revised constitutions have taken diverse forms
that reflect received colonial model, they have attempted by and
large to address the wide ranging social, economic, ethnic, and
political and other problems that have afflicted the continent.
• Almost all these constitutions (new constitutions) contain provisions
that purport to recognise and protect most fundamental human rights
that are associated with constitutionalism and western liberal
democracy.
• Although these constitutions have these provisions, the history of
constitutionalism is not a happy one. Most of the problems have not
been caused by absence of constitutionalism per say but rather by
ease with which constitutional provisions are abolished, overthrown,
suspended or shamelessly ignored with little respect to the rule of
law.
• In Africa for example, political development since Ghana’s
independence in 1957 have demonstrated again and again that
constitutions have not only failed to regulate the exercise of power but
what is more devastating is that they have not become basic as the
analytical traditions of scholars thought they would be. This has created
a inconsistency and dilemma in African constitutional jurisprudence for
the following reasons:
i. It has failed to promote amongst other things constitutional and
political justice
ii. It poses threats to the entrenchment of constitutionalism and the
rule of law.
• These factors have further created other constitutional challenges
which are:
Rise of dictatorship
Emergence of war and war-like conditions e.g. Somalia
Socio-economic distress and conditions of the people.
The problem is how to solve these problems through the action of a
constitutional state.
Rule of Law
According to Fallen
What is the purpose of Law?
Protection against anarchy and the Hobbessian war of all against all
Allow people to plan their affairs with reasonable confidence
It guarantees against at least some types of official arbitrariness
Five elements of the purpose of the
Law
i. Capacity of legal rules, standards, or principles to guide people
ii. Efficacy, the law should actually guide people ruled by law and obey
it
iii. Stability to facilitate planning and coordinated action over time
iv. Supremacy of legal authority- law should be official
v. Instrumentalities of impartial justice – courts to be available
Definition of ROL- Rachel Kleinfeld
• Five different goals of the ROL
Making the state abide by the law
Ensuring equality before the law
Supplying law and order
 providing efficient and impartial justice
Upholding human rights
Definition –Dicey the ROL
• Three things according to Dicey
Absolute supremacy of the law
Punished when law is breached
Equality before the law
All manner of governments have embraced the concept of the rule of
law.
Popularized in the 21st century
1950’s one requirement for receiving aid was to uphold ROL
Citizens not to be subjected to
Rulers
ROL implies the principles of equality before the law- no class
ROL absolute supremacy of the law that is superior to the law of the
regular laws of the land as opposed to the presence of arbitrary
power
The separation of the judiciary from the executive
ROL implies individual responsibilities
ROL stands for the view that the decisions should be made by the
application of known principles of law
Rule of law in Zambia
• Zambian constitution is the highest law of the land and provides for
essentially , the structure of the government and protection of the
Zambian people’s rights.
• Some Parts of the constitution
• Citizenship
• Rights of life, personal liberty, a fair hearing. Freedom of conscience
and religion, expression , assembly and protection from slavery,
inhuman treatment, deprivation of property, against arbitrary
Rule of law and constitutionalism
• ROL is the deepest and strongest tradition of constitutionalism
• Central theme in constitutional reforms in all lands
• ROL is a cornerstone of contemporary constitutional democracy as a
way to underscored by it’s role in cementing the recent transition
from authoritarian or totalitarian regimes to constitutional democracy
in Eastern Europe and elsewhere.
• ROL requires that state only subject the citizenry to publicly
broadcasted laws that the state’s legislative function to be separate
from the adjudicative function, and that no one within the policy be
above the law
Three essential characteristics of
modern constituonalism
Limiting the powers of government
Adherence to the rule of law
Protection of fundamental rights
The Relationship between
constitutionalism and the ROL
• Constitutionalism is a necessary foundation for the ROL since one
core meaning of the ROL is ‘limitation’
• Constitutionalism provides a minimal guarantee of the justice of both
the content and the form of law. Constitutional democracy provides a
guarantee that the content of the law will be just. A large number of
devices , including representative democracy, competitive and
periodic elections and free press
• Strikes a proper balance between the ROL and person
• Constitutionalism is safe guarded by the rule of law. Without the rule
of law ,there is no constitutionalism
summary
• ROL means among other things supremacy of the law,
• equality before the law,
• lack of arbitrary power,
• separation of powers,
• individual responsibility and that the decisions are made on known
law,
ROL is related to constitutionalism in the following way:

• Constitutionalism is the foundation of the ROL

• Constitutionalism provides minimal guarantee of justice of both
content and forms of law
• Constitutionalism strikes the balance between ROL and rule of man
• Constitutionalism safe guards rule of law