The concept of constitutionalism entails the idea of limitation of power. It refers to the idea of limited government power. Within the context of a constitution, it implies a system of limited constitutional governance. Rosenfeld describes constitutionalism as “a three faceted concept” that, requires imposing limits on governmental powers, adherence to the rule of law, and the protection of human rights.[1] Mcllwain on the other hand describes constitutionalism as the antithesis of arbitrary rule, the opposite of despotic government, as the government of will instead of laws.[2]
However, there is a distinction between constitution and constitutionalism. Schochet in relation to this distinction points out that, “there is a closeness between constitutionalism per se and the having of a constitution, closeness that is behind the easy and frequent slippage from one to the other.[3] This closeness must be distinguished in order to prevent the slippage. Constitution refers to the form, the document itself, the body of laws, legislation and resolutions, defining, authorizing and regulating state power. It is the juridical framework supporting functioning of state power. Constitution is focused on the order based on the statute, along with organizing of state power and ensuring its stability. It also regulates the form of the state, the order of establishing institutions representing state power and area of their authority, along with the administratively territorial system, persons' legal status and their interrelation with state power while constitutionalism relates to the substance, values embedded in the constitutional provisions. Constitutionalism presupposes the existence of a constitution, whether written or unwritten.[4]
According to Okoth Ogendo, the opposite is not true. Most African countries based on their constitutional history, they adopted new ‘constitutions’ amended or replaced old ones with new ones in order to consolidate their personal powers, with countries such as DRC beating the world record of one constitution per year in 46 years of independence; hence the reference of these constitutions by Ogendo as constitutions without constitutionalism.[5]
Many of the constitutions instead of limiting powers of the government, establishing the rule of law, protecting human and people’s rights and fostering democracy, they were enacted instead to remove any checks on government power, to limit the power of the sovereign people, to subject them to the will of the president and his government, and to restrict or deny them most fundamental rights. Andre observes that in the process, “From the sovereign citizens they are supposed to be in a democratic regime, the people were reduced to the status of subjects and the rule of law was replaced with the rule of the will and wish of the strong man – a military or civilian ruler – who acceded to power in an undemocratic manner, that is by coups d’état, political assassinations or vote-rigging.”[6]
In this regard therefore, constitutionalism implies a governance of laws as opposed to governance of men. It recognises the rule of law. It deals more with rationalization of the institutions of state power than setting up their structure, besides; it deals also with issues of their reasonable regulation and restriction.
The concept of constitutionalism can be said to encompass the idea that a government should not only be sufficiently limited in a way that protects its citizenry from arbitrary rule but also that such a government should be able to operate efficiently and in a way that it can be effectively compelled to operate within its constitutional limits. Put differently, constitutionalism refers to a government limited in its actions and accountable to its citizens for its actions. In this sense therefore, the concept rests mainly on two pillars;
1. Existence of limitations imposed on the state particularly in its relations with the citizens based on certain clearly defined set of core values.
2. Existence of a clearly defined mechanism for ensuring that limitations on the government are legally enforceable.
In this respect, constitutionalism has certain core, irreducible and possibly minimum content of values with a well defined process and procedural mechanisms to hold government accountable. According to recent literature, constitutionalism has five core elements:
1. Recognition and protection of fundamental rights and freedoms
2. Separation of powers
3. Independent judiciary
4. Review of constitutionality of laws and
5. Control of the amendment of the constitution.
Charles Manga argues that the respect for human worth and dignity is the static principle of constitutionalism, the other core elements, he posits, are bound to change as better ways of limiting the government and protecting its citizens are devised.[7]
JUSTIFICATION FOR CONSTITUTIONALISM
Why is it necessary to infuse constitutionalism in systems of governance?
Justification of this concept lies in the very understanding the state power and hence government power is open to abuse and its oppressive if it is not limited. The temptations to abuse state power and divert it from the objectives for which it was introduced and instead direct towards personal ends of those entrusted with state power is a constant reality. It is this reality that necessitates constitutionalism as a concept of limiting state power. James Madison in his federal paper No 51 justifies constitutionalism in terms of human nature in the following terms;
But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.[8]
Indeed Charles Managa in describing this nature of human beings in relation to African governments says that, ‘the 1990’s appear to have marked a critical high point for constitutionalism, rule of law and democracy in Africa. As the third wave of democratisation swept across Africa, it generated expectations of a new dawn and the end of an era of corrupt, authoritarian and incompetent dictatorship that had earned the continent the notoriety for political instability, civil wars, famine, diseases and similar ills’.[9]
Manga goes on ahead to observe that many of the continents problems have been caused, not by the absence of constitutions per se, but rather by the ease with which constitutional provisions were abrogated, subverted, suspended or brazenly ignored. Indeed this is the abuse of power that James Madison refers to as the human nature and which constitutionalism aims at curbing or nabbing at the bud thereby saving the people from the arbitrary power of the government when it is abused. This is achieved by limiting the power of the government.
Noel B. Roynolds in his article, Political power and the American Constitutionalism, also justifies constitutionalism in terms of human weakness. He argues that, alongside the recognition of the need for rulers, there should be recognition of the need to control rulers. It is unthinkable to imagine a society without rulers, thus the search for the best mechanism to control them.
CONSTITUTIONALISM AND RULE OF LAW
Constitutionalism and the rule of law are closely linked. However, the latter has been defined differently by different authors and is somewhat ambiguous. Its contemporary definitions refer to it as a cluster of ideas including the following; principle of legality, separation of powers, promotion of material justice and individual rights, maintenance of public order and prescription of procedural standards in the administration of justice. Accordingly, most of the core elements of constitutionalism are necessary for the existence of rule of law but as concept, the Rule of law is much narrower in scope than constitutionalism. Respects for the rule of law may itself not lead to constitutionalism albeit, constitutionalism is safeguarded by the rule of law and without the rule of law, there can be no constitutionalism.
CONSTITUTIONALISM AND DEMOCRACY
There is a tendency to equate the two concepts. However, they are different; just like the existence of a constitution does not guarantee constitutionalism, existence of democratic values, principles or institutions is not an indicator of constitutionalism. It is important to note at this point that there is no contradiction between the two concepts; this is because some constitutions promote both concepts. There are however instances where democracy has been used to subvert constitutionalism.
Democracy, just like constitutionalism is also a fuzzy word that has been subjected to different interpretations. However, Abraham Lincoln defined democracy as a government of the people, by the people for the people. Thus, democracy is a rule by the popular will. This indeed can be achieved with or without a constitution.
Experience has shown that even where there is democracy based on a constitution, constitutionalism is not always a by product. This can be exemplified by the reigns of dictators such as Mobutu Sese Seko, Marcias Nguema and Jean Bedel Bukasa who staged elections in order to legitimise their stay in power. Popular will is capable and has indeed resulted to a tyranny of the majority or of the minority or of one man, examples include the injustices of classical Greek democracy and the terrors of the French revolution.
Charles Manga correctly observes that neither constitutional governance nor democracy governance is synonymous with constitutionalism. But the two can be reconciled as Ulrich points out; modern constitutionalism involves the reconciliation of the democratic rule of men with the constitutional rule of law.
NORMATIVE FOUNDATION OF CONSTITUTIONALISM
Constitutionalism has both substantive and procedural elements. It limits not only the procedures to be followed by the government in performing its functions but also the objectives to which the power is directed. In this sense, constitutionalism identifies the basis of its limitation effect upon certain normative value and standards that become a force that gives legitimacy to running of state affairs.
Limitation of government is informed by a certain normative framework that provides the beacons which demarcate a legitimate operational sphere. It is informed by a normative yardstick against which to evaluate government as well as private actions. Ulrich argues that normative foundation should with normative function of constitutions and not just an over focus on the amount of power. He premises his arguments that, ‘in a somewhat pointed manner we may say that the idea of constitutionalism is neutral vis a vis the amount of power. Whereas, it is very much concerned about the mediation, civilisation and nationalisation of political power which does not necessarily mean to minimise it. The criteria by which distinguish constitutionalism from absolute authoritarian state is not the amount of power but its quality. The property of a constitutional state consists in the subjection of its political power to rules which claim validity as legal norms and which are enforced by specialised law enforcement agencies particularly constitutional courts. Constitutionalism therefore embraces the idea of normative penetration of the body polity to that effect that its institutions continue and operate irrespective of the changing majorities and of the facilitation of polities in general to its idea of normative supremacy and continuity.
This means that political decisions making and processing of social conflicts including conflicts between individuals and government are subjected to a class of legal rules which claim supreme legal validity- the constitution constitutionalism which means that the authority of government is not willed according to will and arbitrariness’s of men but according to legal rules, rule of law rather than rule of men. Thus a constitution is an embodiment of a legally enforceable normative programme which generates obligations both for rules and the ruled.
According to Ulrich, the importance of constitutionalism lies not so much in the limitation or minimising of power but in insisting of right quality of power. Normative principle in this regard comes in to provide the correct quality standards to be used in assessing the quality of power. It is therefore correct to argue that it is possible to have a constitution that limits powers of government without necessarily amounting to constitutionalism in the sense of normative legitimacy in terms of quality. Thus the argument by Ulrich that in feudal catholic, the legitimacy power of rulers was traced in religious divine agreements and foundations, power in modern states requires secular justification thus perspective of political theory, people and their sovereign power have replaced a god as legitimising force of power. It is the constitution which has supplemented the Holy Scripture.
The people are the ultimate force and source of authority and constitutions the source of force that provides legitimacy to all activities, it is in this legitimacy sense that constitutionalism is seen as a system of normative principles. The basic basis for conceptualizing a government is the service to the welfare of the people which is an objective basis. It is this objective standard that inform norms upon which constitutionalism should be founded. Power should not be limited for the sack of it but as a means of normative objective of serving the welfare of the people. It is from this perspective that quality of power should be evaluated from.
Power which the people created by consolidating their individual strengths which power is now delegated to a few to administer on their behalf and for their benefit cannot latter be put to any other use or be put against their own interest.
1. Recognition and protection of fundamental rights and freedoms
Protection of fundamental human rights and freedoms has become a standard of constitutionalism recognised and accepted by all African countries. The manner and scope of recognition and protection of these rights in constitutions of African states varies from country to country. In South Africa, they are found in the Bill of Rights[10] whilst in other countries it is done through a section titled, ‘protection of fundamental rights and freedoms.’
As regards scope, most of the old constitutions cover first and second generation rights while most of the recent constitution cover up to third generation rights taking a cue from the African Charter on Human and Peoples’ Rights. Article 21(2) of the Angolan Constitution provides that, “the fundamental rights provided for i the present law shall not preclude other stemming from the laws and the applicable rules of international law.” This is important when it comes to interpretation of rights.
Similarly, the South African Constitution has an expansive provision on interpretation of its Bill of Rights. Article 39 provides that, “when interpreting the Bill of Rights, the court must promote the values that underlie an open and democratic society based on human dignity, equality and freedom” and must also consider international law as well foreign law.
Kenya has taken cue from the African Charter as well as the South African Constitution by recognising and protetcting fundamental rights and freedoms through a Bill of Rights which forms Chapter four of our constitution. In terms o scope, it goes a step further by recognising and proecting all the three generation rights. It recognises and protects Economic and social rights in Article 43. It recognises and protects group rights such as those of women, youth, older members of society, and persons with disability.[11] It also recognises novel rights such as those of consumer rights.[12]
Article 20 (1) of the Kenyan Constitution requires the courts while applying the Bill of Rights to adopt an interpretation that most favours the enforcement of a right or fundamental freedom, to promote values that underlie an open and democratic society based on human dignity, equality, equity and freedom and the spirit, purport and objects of the Bill of Rights.
To underlie the importance of human rights protections, most of the African constitutions provide for special procedures for their enforcement by allowing by allowing any person aggrieved by any violation of any of these rights to seek redress from the courts. These procedures are found in Article 22 of our constitution which gives the right of standing to any person who claims a right has been infringed or is threatened.
2. separation of powers
Separation of powers is one of the preoccupations of constitutionalism. It is a concept driven by suspicion and distrust of power and in particular its concentration. Lord Acton said in reference to over concentration of power, “all power corrupts but absolute power corrupts absolutely.” Africa has been a classic example of abuse of power which its leader abrogated to themselves in excess. Out f the woes it has undergone through, just like in other democracies, Africa has tried to remedy this by adopting constitutions that provide for separation of power thereby limiting its concentration on one institution or person.
Though this concept will be analysed in detail in the next class, it simply entails the creation of three institutions, that is, the executive, judiciary and the legislature which are separated from each other in terms of composition and function.
There are three models of separation of powers to choose from and indeed an analysis of African constitution will show that most of the constitutions are based on these three models. First is the semi rigid presidential system that is applied in the USA constitution, second is the Westminster model though it recognises the three branches of government, it provides for an overlap between the powers of the executive and the legislature and the third one being the French Model which is a mix of the first two and provides for collaboration rather than strict separation of powers with its peculiarity being the dominance of the executive and the subordinate position of the judiciary.
Whichever method is adopted, the objective is to have a system in which the risks of concentration of power and the attendant consequences that go with it can be forestalled through interference by each of the three powers in each other’s domain.
3. The independent judiciary
An independent judiciary is a necessary and logical corollary to the doctrine of separation of powers. A constitutionally entrenched independent judiciary is an essential and necessary precondition to functional and substantive judiciary. An independent judiciary can be defined as one that is free to render justice in all issues of substantial legal and constitutional importance, fairly, impartially, in accordance with the law, without threat, fear of reprisal, intimidation or any other undue influence or consideration. Like of separation of powers, it is not an absolute concept. It does not refer to a single kind of relationship or something that a judicial system has, or does not have but rather what it may have more of it or less of it.
Determinates of constitutional independence include vesting of judicial functions exculisvely to the judiciary, qualifications for prospective judges, the independence of the appointment process, the independence of the judicial service commission, security of tenure, judicial remuneration, promotion and disciplinary processes and immunity from criminal and civil suits.
4. Review of constitutionality of laws
A constitution is only as good as the mechanism provided within it for ensuring that its provisions are properly implemented and that any violations of it are promptly sanctioned. Therefore an important bulwark of constitutionalism is the existence of an effective and efficient mechanism of for controlling and compelling compliance with the letter and spirit of the constitution. Without this, the constitution is not worth the paper on which it is written. On the other hand, this the only way through which the supremacy of constitutions is revealed and upheld. Article 2 (4) invalidates any law or act that is contrary to the constitution based on Article 2 (1) which declares the constitution as the supreme law of the Land that binds all person and all state organs at both levels of government.
Review of constitutionality of laws is done through the courts by way of petitions or judicial review. Article 165 gives the High original jurisdiction to hear and determine matter regarding interpretation of the constitution, protection of fundamental rights and freedom. While determining such matters, by dint of Article 23 (3) the court may grant appropriate reliefs, declaration of rights, injunctions, conservatory orders, declaration of invalidity of law, orders of compensation and orders of judicial review.
5. The control of constitutional amendments
A constitution should be an enduring document. It is the supreme law based on the sovereign will of the people. If it can altered easily, it will lose its vale as the supreme law and the alterations are more likely to subvert the will of the people. Constitutionalism implies that a constitution should not be suspended, circumvented or disregarded arbitrary by political organs of government. And that if is it is to be amended; it should be through a clearly laid down procedure that guarantees that the will of the people is not defeated in the process.
The existence of a constitution that is not overtly vulnerable to governmental or transient majoritarian manipulations through arbitrary amendments provides a sense of certainty and predictability that enhances the prospects of constitutionalism.
[1] Rosenfeld, M. (1994) “Modern Constitutionalism as Interplay between Identity and Diversity”, in Rosenfeld, M. (ed) Constitutionalism, Identity, Difference, and Legitimacy. Theoretical Perspectives, Durham & London: Duke University Press, pp 27-28
[2] McIlwain, C.H. (1947) Constitutionalism: Ancient and Modern, Ithaca, New York: Cornell University Press (revised edition), pp 21-22.
[3] Schochet, D.J. (1979) “Introduction: Constitutionalism, Liberalism, and the Study of Politics”, in Pennock, J.R. & Chapman J.W. (eds) Constitutionalism, New York: New York University Press, p 11.
[4] André Mbata Mangu, Constitutional democracy and constitutionalism in Africa, p 3.
[5] Okoth-Ogendo, H.W.O. (1996) “Constitutions without Constitutionalism: Reflections on an African Paradox”, in Zoethout, C.M. et al (eds), Constitutionalism in Africa. A quest for autochthonous principles, Gouda: Quint Deventer , pp 3-25
[6] André, ibid, p 4.
[7] Charles Manga Fombab, Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties: Lessons and Perspectives from Southern Africa, a paper presented at a seminar at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, (SAIFAC), Johannesburg on 21 July 2005
[8] James Madison, The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, Federal Paper No. 51, New York Packet. Friday, February 8, 1788
[9] Charles Manga Fombab, Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role of Political Parties: Lessons and Perspectives from Southern Africa, a paper presented at a seminar at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, (SAIFAC), Johannesburg on 21 July 2005.
[10] See Chapter 2 of the Constitution of South Africa.
[11] Article 21 (3), 27 (7)
[12] Article 46
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