Constitution | Types, Sources, Scope & features

Constitution is a body of rules, principles and practices controlling the distribution, regulation and exercise of governmental powers. It defines the qualification for government offices, guarantees the rights and freedom of individuals and prescribes procedures for constitutional amendments and so on.

A constitution is an articulation of the aims and objectives of the people which the government shall realize. Constitutionalism means the application of constitution in the realization of the set goals. It involves the proposition that the exercise of governmental powers shall be in accordance with the prescribed rules.

Constitutionalism is based on the belief that government should be based on established laws and principles. In a simple sense, constitutionalism means that the constitution of an association shall be followed in determining the right and wrongs or the legality of an act. It is the interpretation and application of the constitution in order to determine the legality of an act of the executives, legislature or citizens that is seen as constitutionalism. It is the adoption of the provision of the constitution in determining act of government or individuals. Constitutionalism is one of the principles adopted in a democratic state. It has a lot in common with rule of law and legality. They are the guard against the abuse of power.

Types of Constitution

Written: this implies that the constitution of the state is embodied in a formal document to which reference can be made. This kind of formal documentation first began with the American constitution of 1787. Nigeria, France, Germany, Mexico, Russia and Ghana have written constitution. It is the modern practices among states to have a written constitution.

Unwritten: this implies that the constitution of a state is not written down in one formal document, which can form a reference point. Thomas Paine, an American revolutionary pamphleteer, was so displeased about the absence of one compact document containing the Britain constitution that he once declared that the Britain has no constitution. Indeed Britain has a constitution but is partly written and partly unwritten.

Flexible: this is one of the types of constitution that is easy to amend. This easy process of amendment often equates a constitutional law.

Rigid: the process of amendment is complex and difficult. It involves rigid compliance with an agreed constitutional method, which makes amendment difficult to process. It is usually all written, the US and the 1979 Second Republic Constitution of Nigeria are examples of rigid constitution. Under the 1979 Second Republic Constitution, proposal to amend the Nigeria constitution requires the initiation of 2/3 of each House of the National Assembly and approval of same proposal by 2/3 of the state legislative House provided each state legislature passed the amendment bill by 2/3 majority. Despite the enthusiasm and eagerness showed throughout the Second Republic in Nigeria, no amendment bill ever took off from the national Assembly.

Unitary: in a unitary form, there is provision for one central government with authority to govern without any intervening, independent subdivisions. This central authority may permit local governments to exist and conduct certain activities but only on the basis of delegated authority. The local government (whether province, countries or districts) are nothing but agents of the central government. This is the form of constitution in which the subdivisions are dependent on the central government. Examples of countries that practice it is Britain, Italy and France.

Confederation: This is constitutional form with two levels of government, the general and the regional. In a confederate system, the general government is subordinate to the regional governments. A confederation is formed when independent and sovereign member states come together for some common purposes. Being sovereign each state can choose to recognize the general laws of the confederate government. The authority of the general government is limited to the agreed areas of co-operation. The 1777 United States Articles of Confederation are an example of a confederate constitution. So also were the laws German confederation and Sene-gambia. In each confederation each member state’s sovereignty remains intact. In terms of war, each sovereign region brings their soldiers in defense of the confederation. Senegal and Gambia entered into confederation in 1981 but the union collapsed in 1989.

Advantages and disadvantages of Flexible Constitution

  • It is less cumbersome to amend.
  • It amendment is not time consuming.
  • This method of constitutional change can meet an emergency need of a nation.
  • It avoids prolonged over-politicization and consequent polarization, which may lead to a breakdown of the constitutional order.

Disadvantages

  • It trivializes the basic la of the land by equating the constitution with an ordinary legislation.
  • It may not generate political participation among the populace and a constitutional amendment which radically changes the life of the people may pas unnoticed by a large majority of the them.
  • This method makes constitutional amendments too tempting to legislators leading to quick changes and utter disregard for experimentation of existing constitutional law.

Advantages and Disadvantages of Rigid Constitution

  • It allows for political participation.
  • It gives room for prolonged discussion, second thought and debates, over the pros and cons of a constitutional amendment.
  • It discourages undigested constitutional amendment.

Disadvantages

  • It makes changes sometimes, urgent constitutional change impossible or too late to accomplish.
  • It may generate prolonged controversy and over politicization, which can lead to serious political crisis or even breakdown of the constitutional order.

SOURCES OF CONSTITUTION

  • Custom and tradition
  • Conventions
  • Acts of parliament
  • Judicial precedents
  • Opinions of elder statesmen
  • Decisions of national conference
  • Military decree
  • International agreements

Conventions: Conventions are agreement based on common consents. Conventions are binding practices, which are forms of political behavior regarded as obligatory. They are rules of political practices which are regarded as binding on whose whom they apply but which are not law, because they are not enforced by the court. The observance of conventions helps in the development of any constitution. Conventions are mostly adopted in international convention. Conventions are not backed by the law but are necessary for constitutional formation. Conventions follow moral principles like, when someone is defeated in election, is compulsory he leave his post for the winner.

Custom and Traditions: Custom is simply defined as the people ways of life. Traditions are habits maintained by group of people for many years. Tradition is the belief, opinion and customs, members of a particular society share in common, which influences the way they live. In Nigeria certain generally accepted custom and traditions have form part of the constitution. It is custom that a man should get married and also tradition that, they must have witnesses for the marriage. Every town in Nigeria has their customary practices that the constitution may observe. If the custom and traditions are generally accepted, the constitution must take note of it.

Acts of National Assembly: The Nigeria law makers/parliament is called national assembly. Important acts of National Assembly in Nigeria form parts of the constitution. Nigeria was colonized by Britain and the major acts of British Parliament like the Bill of Right Act (1689) the Act of Settlement (1701) and the Representation of People Act (1918) have great influence on the Nigeria constitution. The Nigeria National Assembly has numerous acts that have form part of the Nigeria constitution. Some of these acts are Open University Act of 1983, Economic and Financial Crime Commission Act, National Industrial Court Act.

Judicial Precedents: These are judgments, decisions made by the judge on constitutional and unconstitutional matters. Those judgments made many years in Britain and some celebrated judgments in Nigeria have helped in the development of Nigeria constitution.

National Conference: National conferences are meetings organized by the state to discuss some troubling political problems, constitutional matters and methods of solving national issues generally. The 1994 national conference discussed Nigeria political problems like the rotation of the presidency, multiple vice president, revenue allocation, marginalization etc. Some of the decisions reached helped in the formulation of 1999 constitution.   

International Agreements: International agreements are understandings reached on certain issues in international associations. Some decisions reached at international conferences and treaties have binding force on members. Nigeria is a member of United Nations, African Union, Economic Community of West African States, Organization of Petroleum Exporting Countries, Common Wealth, Non Aligned Movement etc. The charters of these organizations are integrated in the Nigeria Constitution.

Military Decree: Military decree are the major instruments of ousting constitutional powers, they have been used in creating states or government agencies by the military. Decree are orders passed by the highest military ruling body, decrees are used by the military to create more states. The land use decree of 1978 and the indigenization decree of 1977 are good examples of military decree. Military coup has been a frequent method of changing constitutional or unconstitutional government in Nigeria. All these thing helped during the formulation of 1999 Nigeria constitution.

SCOPE OF CONSTITUTION

Ideal and purpose: A constitution is principally an expression of the ideals, purpose and aspirations of a people. These ideals and goals are identified and formalized in the preambles to a written constitution i.e. as in the USA. Or it may be formally dramatized and given prominence in the chapters or in sections of the constitution. An example of this is in the soviet constitution and in chapter 2 of the 1979 Nigeria constitution entitled fundamentals objectives and directive principles of state policy.

The basic structures of Government and their functions: This consists of the arrangements of the basic organs of government authorities and of other organizations established by the state. It includes the three arms of government and other political institutions besides these known organs, which are part of government authorities.

Distribution of power: The powers of the three principles arms of government- the legislative, executive, and judicial are stated and their relationship defined. The constitution also spells out the various levels of government and their different powers and relationships.

Citizen’s rights: Basic to a constitutional state is inclusion of fundamental rights of citizens in a constitution, or some form of documentation which form part and parcel of the constitution. Often dubbed Fundamental human right or Bill of Right, these clauses in the constitution are considered by many jurists as the core of a constitution. It consists of the inalienable rights of citizens, which set the limitations on the power of government, thereby curbing the arbitrary use of power and authority by governmental institutions and officials.

Methods of amendment: Every constitution written or unwritten, anticipates the inevitable need for some change or amendment. A constitution provides for a method of amendment to its original form.

ESSENTIALS OF A WRITTEN CONSTITUTION

All constitutions in the world are written, if people were to draw up a new constitution, for instance, as in the case of developing states where military intervention and civilian reinstatement is the pattern of regimes, what should be the guiding principles? An ideal written constitution must consist of these essential principles:

  • It must not be too wordy nor contain too many details. It must be brief but meaningful. The work of detailed interpretation must be left to the judicial arm of government.
  • There should be an institution for interpreting the constitution. In the US, Canada and Nigeria, it is the Supreme Court. In France this responsibility lies with both the constitutional council and the council of state.
  • There should be a formal process of amending the constitution. Such a process must neither be too easy nor too difficult.
  • It must reflect the values, needs and aspirations of the people for whom it is written. It should be suitable for the state and acceptable to the people. One of the root causes of constitutional failure in most former colonies is the adopting, almost without adapting of their formal masters, constitutional forms, institutions and practices.
  • A constitution should be dynamic enough to make it adaptable to changing political, social and economic forces. It should be anticipatory of possible changes so that it would not be necessary to frequently amend this basic law of the land.

PURPOSE AND FUNCTIONS OF CONSTITUTION

The main purpose of constitution is to have a working tool that would enhance the organization of an association. The ambiguity and confusion, which would have been the everyday experience of an association, are minimized with the making of a constitution. A constitution ensures the smooth functioning of government it spells out in clear details what should be done and what ought not to be done.

A constitution is an instrument through which certain political objectives are realized. In the case of Nigeria constitution, the fundamental objectives and directives principles of state policy as stated in chapter two of the 1999 constitution emphasizes the goals of government.

It is the constitution that allocates and distributes powers and authorities to the three organs of government. It outlines the type of government to be adopted whether unitary or federal. The qualification for election and appointment into various organs of government are detailed by the constitution. Part two of chapter one of the 1999 constitution limits the powers of the organs of government in the exercise of their duties.

It serves as a significant education factor by declaring and propagating political ideas and their aims. It also stimulates political values. In the constitution, the citizens are afforded the opportunity of knowing their duties and obligations to the state and its institutions.

Foreigners are given the opportunity of applying for citizenship of a country through laid down procedure. Chapter three of the 1999 constitution outlines the methods for applying for citizenship of Nigeria by foreigners.

Another function of the constitution is the detailing of the rights of individuals that make up the association. The constitution ensures that individual rights are protected. The 1999 constitution of Nigeria provides for the fundamental rights of Nigerian citizens in chapter four.

It also provides for the type of party system to be adopted in a state.  It also provides for the methods to be adopted in the formation of political party and the conducts of parties in the pursuit of election into legislative and executive organs of government.

It also specifies the procedures to be adopted in amending the constitution. It states whether simple majority or two-third majority of members of parliament can amend a constitution. It also states whether opinion of the citizens must be sought through a referendum on certain amendments.

FEATURES OF A CONSTITUTION

  • It is comprehensive and superior to the rules and principles of other associations i.e. it is superior to all other laws.
  • All other laws are derivable from a constitution.
  • In a constitutional state, the people are the source of a constitution.
  • The state is the creator of the constitution. It can order a new constitution.
  • Government is a creation of the constitution i.e. the constitution take precedent over the government of the state.

The Impact of International Law on Nigeria Constitution

Nigeria constitution like the constitution of other countries has the impact of international law. A nation like Nigeria does not exist in isolation. The world is a global village, the declaration of United Nations Organization, African Union, Economic Community of West African States and Common Wealth of Nations, influence the provisions of the Nigeria Constitution.

Nigeria is a member of many international organizations. Some of the treaties and declarations of those international organizations are binding on Nigeria. Nigeria constitution reflects the declarations of those international organizations. Some of the areas the Nigeria constitution reflect the intention of the international communities are outlined below.

First, the preamble of the Nigeria constitution provides that: we the people of the federal republic of Nigeria; having firmly and solemnly resolved; to live in unity and harmony as one indivisible and dissoluble sovereign Nation under God, dedicated to the promotion of inter-African solidarity, world peace, international co-operations and understanding. The preamble of the 1999 constitution of Nigeria emphasized the objective of the constitution which among other things includes the promotion of inter-African solidarity, world peace, international cooperation and understanding.

The September 11, 2021 terrorist attack on United States of America received the condemnation of international community and the cooperation of international community in the war against terror. Nigeria has played a significant role in the Congo war, in Liberia, Sudan, Ivory Coast, Sierra-Leone, Burkina Faso, in ECOMOG peace keeping, and in dismantling apartheid in South Africa. The participation of Nigeria in ECOWAS, AU,UNO, Common Wealth, Non Aligned Movement etc, are parts of the resolve to keep up with the international agreements in line with the constitution.

Second, the foreign policy of Nigeria is provided in section 19 of the 1999 constitution. The section provides that the foreign policy of Nigeria shall include among others, the promotion of African integration and support for African unity; the promotion of international cooperation for the consolidation of universal peace and mutual respect among all nation and elimination of discrimination in all its manifestations. The respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication and the promotion of a just world economic order.

The foreign policy directive is explicit on the promotion of African integration and unity. This of course is the cardinal point of Nigeria’s foreign policy. The respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication and the promotion of a just world economic order. The foreign policy directive is explicit on the promotion of African integration and unity. This of course is the cardinal point of Nigeria’s foreign policy.

It also emphasizes the promotion of international co-operation for universal peace, mutual respect and elimination of discrimination in all its manifestation; the respect of international law, treaty obligation and settlement of international disputes through peaceful means and the promotion of a just world economic order are part of the provisions of the foreign policy directives. These provisions according to Niki tobi are generally in the spirit of the preamble. Article 1 of the United Nation Charter and Article 2 of the African Union Charter and treaty of the Economic Community of West African States (ECOWAS) have preambles that articulate the policy objectives of the organizations.

Third, section 12 (1) of the 1999 constitution provides that no treaty between the federation and other country shall have the force of law except to the extent to which the National Assembly may make laws for the federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty. This section emphasizes the power of the national assembly in enforcing the treaty obligations between the federal and any other countries.

Fourth, section 148 (2) of the 1999 constitution of the Federal Republic of Nigeria provides that the president shall hold regular meetings with the Vice President and all the ministers of the government of the federation for the purpose of determining the general direction of domestic and foreign policies of the government of the federation. This section implies that the government would regularly meet to determine or review the general direction of domestic and foreign policies of the government.

Fifth, section 27 of the 1999 constitution of Nigeria provides for the procedure for acquiring citizenship of Nigeria by foreigners through naturalization. Section 29 provides for the procedures of renouncing citizenship and section 30 provides for the deprivation of citizenship, especially citizenship of naturalization. Section 31 also provides for persons deemed to be Nigerian citizens in line with the recognition of international laws on grounds of birth or descent.

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