Meaning, Sources, Types and Functions of Constitutions for SS 1

Constitutions

Performance Objectives

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

1. explain the meaning of constitution;
2. discuss the characteristics of constitution;
3. describe the types of constitution;
4. examine the sources of constitution.

Meaning of Constitution

A constitution is the body of fundamental laws, rules, principles and regulations according to which a state or country is governed.

It serves as the supreme legal framework of a nation, establishing the structure, functions and powers of the government. It also defines the relationship between the government and the citizens by outlining the rights, duties and obligations of each party. In any democratic state, the constitution is the highest authority, meaning that all other laws made by the legislature must conform to its provisions. If any other law is inconsistent with the constitution, that law is declared null and void to the extent of its inconsistency.

The constitution performs several vital roles in a political system. It prevents the rise of tyranny by limiting the powers of government officials, ensures the orderly transition of power through periodic elections, and provides a peaceful mechanism for resolving conflicts within the state.

Characteristics of a Constitution

A constitution possesses distinct features that enable it to function effectively as the supreme law of the land. These features ensure stability, order and justice within the political system.

The essential characteristics of a constitution include:

1. Supremacy: The constitution is the highest law of the land. No individual, institution, or government organ is above it, and all other laws must align with its provisions.
2. Preamble: This is the introductory section of the constitution that states the origin, purpose, goals and aspirations of the nation. For example, the preamble of the 1999 Nigerian Constitution begins with, “We the people of the Federal Republic of Nigeria…”
3. Definition of Citizenship: It clearly outlines the qualifications, rights, duties and methods of acquiring or losing the citizenship of a country.
4. Protection of Fundamental Human Rights: It contains a dedicated section that guarantees the basic rights of citizens, such as the right to life, freedom of speech, freedom of association, and the right to fair hearing.
5. Separation of Powers: It defines the distinct roles of the three organs of government—the legislature (lawmaking), the executive (law enforcement) and the judiciary (law interpretation)—to prevent the concentration of power.
6. Amendment Procedure: It outlines the specific, legal steps required to alter, delete or add provisions to the constitution.
7. Judicial Review: It grants the judiciary the power to interpret constitutional provisions and declare actions of the executive or laws passed by the legislature unconstitutional if they violate the constitution.
8. Political and Territorial Structure: It defines the system of government (such as federal or unitary) and specifies the boundaries and divisions of the state.

Types of Constitution

Constitutions are classified into different types based on their form, the ease of amendment, and the distribution of governmental powers. Understanding these classifications helps in analyzing how different nations are governed.

Written and Unwritten Constitutions

A written constitution is a type of constitution in which the fundamental laws, principles and rules of government are formally documented in a single, written book.

Examples of countries with written constitutions include Nigeria, the United States of America, Ghana and Canada. A written constitution is highly valued for its clarity, accessibility and the protection it offers against political manipulation, as citizens can easily refer to the document to defend their rights.

An unwritten constitution is a type of constitution in which the fundamental laws, principles and rules of government are not documented in a single, formal book, but are scattered across various historical documents, statutes, judicial precedents and conventions.

The United Kingdom is the classic example of a country with an unwritten constitution. Its constitutional rules are found in historical documents like the Magna Carta of 1215, Acts of Parliament, judicial decisions, and long-standing political traditions (conventions). This type of constitution relies heavily on the political maturity of the citizens and leaders.

Rigid and Flexible Constitutions

A rigid constitution is a constitution that requires a special, difficult and lengthy procedure to amend or alter its provisions.

The amendment process of a rigid constitution usually requires more than a simple majority vote in the legislature. For instance, in Nigeria, amending the constitution requires a two-thirds majority vote of all members of both houses of the National Assembly (the Senate and the House of Representatives) and approval by the Houses of Assembly of at least two-thirds of all the states. This difficulty ensures that political leaders cannot easily alter the rules of governance to suit their personal interests.

A flexible constitution is a constitution that can be amended easily through the ordinary lawmaking process of the legislature.

No special or complex procedures are required to change its provisions. A simple majority of the legislators present during a sitting can pass an amendment. The constitution of the United Kingdom is flexible, allowing the government to adapt quickly to changing social, economic and political circumstances.

Federal and Unitary Constitutions

A federal constitution is one that constitutionally divides political power between a central (national) government and the component units (such as states, regions or provinces).

In a federal system, both the central government and the state governments derive their powers directly from the constitution, and neither tier can easily abolish the other. Examples of countries with federal constitutions include Nigeria, the United States of America, and Switzerland.

A unitary constitution is one that concentrates all political power and authority in a single central government.

Although the central government may create local or regional governments for administrative convenience, these lower levels of government only exercise powers delegated to them by the central authority. The central government can modify or abolish these powers at any time. Examples of countries with unitary constitutions include the United Kingdom, France, and Italy.

The table below summarizes the key differences between written and unwritten, as well as rigid and flexible constitutions:

Sources of Constitutions

Constitutions do not emerge from a vacuum. They are drafted using ideas, rules and principles gathered from various historical, legal and social origins. These origins are known as the sources of constitutions.

The primary sources of constitutions include:

1. Historical Documents and Treaties: Ancient legal documents that established fundamental rights and limits on government power serve as major sources. A prominent example is the Magna Carta of 1215, which limited the powers of the English monarch and laid the foundation for modern constitutionalism.
2. Acts of Parliament (Statutes): Laws passed by the legislature often become part of the constitutional framework. In countries with unwritten constitutions, like the United Kingdom, statutes such as the Habeas Corpus Act of 1679 and the Parliament Act of 1911 are vital constitutional sources.
3. Judicial Precedents (Case Law): Decisions, judgments and interpretations made by superior courts (such as the Supreme Court) clarify ambiguous parts of the constitution. These rulings become binding legal precedents that guide future constitutional matters.
4. Constitutional Conferences: These are formal meetings held by political leaders, legal experts and representatives of various groups to draft or review a constitution. For example, the pre-independence constitutions of Nigeria (such as the Lyttelton Constitution of 1954) were products of constitutional conferences held in London and Lagos.
5. Customs and Conventions: These are unwritten political traditions, habits and practices that have been accepted over a long period. Although they are not legally enforceable in courts, they guide the behavior of political actors. An example is the convention in the United Kingdom that the monarch must assent to bills passed by Parliament.
6. International Laws and Treaties: Agreements, charters and treaties signed between nations influence domestic constitutions. For instance, the United Nations Universal Declaration of Human Rights (UDHR) heavily influenced the fundamental human rights sections of many modern African constitutions, including Nigeria’s.
7. Opinions of Eminent Jurists and Constitutional Writers: The scholarly writings of legal experts and political philosophers provide theoretical foundations for constitutions. The works of writers like A.V. Dicey on the Rule of Law and Baron de Montesquieu on the Separation of Powers have been widely incorporated into modern constitutions.

Interpreting Constitutional Provisions and Principles

Constitutional interpretation is the process of determining the true meaning, intent and application of the words and clauses contained in a constitution. Because a constitution is written in broad terms to stand the test of time, disputes often arise regarding how its provisions apply to specific real-life situations. The judiciary holds the exclusive power to interpret these provisions.

To interpret constitutional provisions, judges and legal scholars apply specific principles:

1. The Literal Rule: Words in the constitution must be given their ordinary, plain and natural meaning unless doing so would lead to absurdity or injustice.
2. The Purposive Approach: The court looks beyond the literal words to understand the original intent of the framers of the constitution and the social purpose behind the law.
3. The Broad and Generous Interpretation: Because the constitution is an organic, living document, its provisions—especially those concerning fundamental human rights—must be interpreted broadly to protect the citizens rather than narrowly to restrict them.

Practical Application: Interpreting a Constitutional Provision

To understand how constitutional provisions are interpreted, consider Section 33(1) of the 1999 Constitution of the Federal Republic of Nigeria, which states:

“Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.”

An analysis of this provision reveals how rights and exceptions are balanced within a constitution:

1. The Core Right: The provision establishes a general, fundamental guarantee that every individual in Nigeria has the right to live, and the state must protect this life.
2. The Exception: The phrase “save in execution of the sentence of a court” introduces a constitutional exception. This means the right to life is not absolute. If a person commits a capital offence (such as murder or armed robbery), is tried by a competent court, found guilty, and sentenced to death, the execution of that sentence does not violate the constitution.
3. The Condition for the Exception: The constitution specifies that the sentence must be from a “court” in respect of a “criminal offence” of which the person has been “found guilty in Nigeria.” This prevents extrajudicial killings by security agencies or individuals, ensuring that due process of law must be followed before a life can be legally taken.