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.
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.
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.
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.
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.
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.”
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.
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.
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’.
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
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.
It also recognises novel rights such as those of consumer rights.
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.
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
McIlwain, C.H. (1947) Constitutionalism: Ancient
and Modern, Ithaca, New York: Cornell University Press (revised edition),
pp 21-22.
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.
André Mbata Mangu, Constitutional democracy and
constitutionalism in Africa, p 3.
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
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
