Session 2

Nature, Types, Classifications of Constitution

2.0 Introduction
Definition: - A constitution is a set of rules, generally written, which identify and
regulate the major institution of the state and govern the relationship between the state
and the individual citizen. In most countries the written constitution is the ultimate
source of legal authority; all actins of government and the law – making body
(legislature) must conform to the constitution.
In order to uphold and interpret the constitution there will be a Supreme Court. As the
constitution is the ultimate authority, action which contravenes the rules of the
constitution will be both unconstitutional and unlawful. Written constitution also
contains procedural rules for the amendment of the constitution.
Constitution, whether written or unwritten, will share common features. They will
identify the principal institutions of the state- the executive, the legislature and the
judicial. In relation to each of these institutions, the constitution will identify the rights
and freedoms of citizens, through a Bill of Rights which operates both to protect citizens
and to restrict the power of the state
2.1 Nature of constitutional law
2.1.1 The scope of constitution law
The constitution contains what is referred to as the basic/fundamental/ foundational
laws of a state. However, not all constitutional laws are contained in a constitution some
are left to the work of legislation by parliament. Constitution laws made through
legislation may be altered or removed in the same ways as all other acts of parliament
are altered or repealed. Constitutions law includes customs, convention, which are
sanctioned by public opinion and might not be enforceable in a court of law.
2.1.2 The ingredients of a constitution
(i) It asserts the existence of a sovereign state for which the laws contained in the
constitution apply.
(ii) Power is then divided among various organs of the state. Thus the judicial,
executive, and the legislative power is Cleary defined and given to the various
organ. Also, for the purpose of co-ordination, their relationship to each other is laid
down. The various function of each organ are listed down:
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 Setting out the powers of the legislature, the privileges of its members, status
of ministers and position of civil servant who work under them
 The armed forces and the poser to control them.
 The general system of the courts plus tenure and immunity of judges
 Treaty-making power,
 Relationship between the central government and the local authorities.
(iii) It defines who is to be governed under the constitution i.e. citizenship and then it
tells us how the citizen is to relate to the government especially where the rights of
the citizen are involved.
(iv) It also consider historical and political backgrounds of a state e.g. if the major issue
at independence was land then, it is likely that it will deal with these issues.
(v) Other issues dealt with are those of national security, taxation and public finance.
(vi) It also gives the procedure for alteration of the constitution.
2.1.3 Importance/uniqueness/special nature of constitutional law
 It the supreme law of the land in accordance with judicial, parliamentary
and executive practice. It also requires special procedures for amendment.
 Constitutional laws are largely written and this is in contrast with other
sources of law like common law, which are largely unwritten.
2.1.4 Characteristics of constitution
(i) It establishes government machinery;
(ii) It states the mode of operation of this machinery;
(iii) It prescribe the rules of access to this machinery;
(iv) It defines the lines of initiative in the management machinery;
(v) It regulates areas of interplay within this machinery;
(vi) It prescribes rules of resolution of conflict within this machinery and also in
relation to private interests.
2.1.5 Qualities of a Good Constitution
 Dynamic, durable and elastic. It must be compliant with the changes in society in
terms of technology est. it must not be too rigid to prevent change and not too
flexible as to encourage tampering with the basic principles
 Clear and definite: it should define clearly its contents
 It must have a clear amendment procedure and must provide for how and when
it is to be amended
 It should protect the fundamental rights of the individual
 It should be internally consistent and shouldn’t contradict itself or other laws
 It must be practical to apply
2.1.6 The following are the Key Features of a Democratic Constitution
a) Condition: A codified constitution is contained in one single document, which, is the
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single main source of constitution law but an unmodified constitution consists of several
different sources and are not contained in a single written document.
b) Legal Status: this refers to the presence or absence of entrenchment:
Entrenchment refers to whether the constitution is legally protected against
modification. Some constitutions are considered to be the highest laws of the state,
which, may mean that they are entrenched and require a more complex mode of
modification than the rest of the laws of the state. Usually lack of entrenchment also
means that constitutional laws are not higher than the rest of the laws in the state and
they are all modified similarly.
c) Distribution of sovereignty: this refers to where sovereignty is located in the state.
Sovereignty may be of three different types:
 Unitary: where all sovereign power belongs to a single centralized
government
 Federal: where sovereign power is shared between a weak central and other
provincial regions of the state. The central government is usually more powerful
than the regional governments.
 Confederal: where sovereign power is shared between a weak central power
and stronger regional power in such a way that the poser given to the centre is
very minimal.
d) Extent of separation of power: separation of power refers to the Separation of the
executive, judicial and legislative power within government.
e) Lines of accountability - Ministers may be accountable to the President who
appoints and dismisses them and the president is accountable to the people through
elections. The legislature may also pass a vote of no confidence against the president,
which means that the president will resign or that parliament will be dissolved and
general elections are held. In a parliamentary system, ministers are accountable to
parliament but the prime minister is the one who appoints and dismisses them.
2.2 Classifications of Constitutions
a) Supreme and Subordinate Constitution
A supreme constitution is not subject to any external superior force. While a subordinate
constitution is one where the constitution is drafted and introduced in a country by an
external sovereign power, and theoretically may be amended or repealed by that
external power. A good example is the Lennox Boyd Constitution in Kenya which was
enacted by the British government in Kenya when England was Kenya’s colonial master.
It is in this respect that much debate has arisen concerning the status of the British
Constitution following membership of the European Union and the enactment of the
European Community Act of 1972. It has been argued that the English Constitution has
now to some extent been insurbodinated to the European Union system. Similarly,
debates arise with regard to the European Human Rights system after the enactment of
the Human Rights Act of 1998 which seeks to make English law compliant with the
European Convention of Human Rights.
The key question normally is: where does sovereignty lie? From the standpoint of the
European Court of Justice of the Community, the treaties that established and define the
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community and the Union are supreme and sovereign and the sovereignty of the
member states is limited by membership.
From the standpoint of the British judges, however, the sovereignty of the British
Parliament remains Intact. Britain has just voluntarily accepted the European Union Law
under an ordinary Act of Parliament, the European Communities Act, which provides for
the reception and enforcement of European Community laws within the domestic courts
of Law. This Act can easily be amended by Parliament if it is deemed that England no
longer wishes to be subjected to the European Community system or the laws enacted
thereunder.
b) Flexible and Rigid Constitutions
Dicey defines a flexible constitution as:
‘one under which every law of every description can legally be changed with
the same ease and in the same manner by one and the same body’ (Dicey,
Introduction to the Study of the Law of the Constitution, 1885).
He defined a rigid constitution, on the other hand as:
‘One under which laws generally known as constitution or fundamental laws
cannot be changed in the same manner as ordinary laws.’
A further subdivision of rigid constitution is based on whether the special amending
procedure is the sole power of the legislature or some agency outside the legislative has
to be brought. In the later case, the constitution may be said to be supreme over the
legislature.
Also, sometimes parts of the constitution may not be alterable at all. For example:
 Some articles of the German Federal Republic Constitution (1949)
 Basic article of the constitution of the republic of Cyprus (1960)
 The representation of a state in the U.S.A. senate (unless the state consents)
Plus some provisions may be unalterable within a certain time e.g. some provisions of
the U.S.A constitution before 1808.
In India, the Supreme Court in Kesavananda Bharati v. State of Kerala (1973) held
that certain features of the Constitution India, such as the provision for secularism, are
beyond the limit of the powers of amendment of the Indian parliament. That the "basic
structure of the Constitution could not be abrogated even by a constitutional
amendment". This has come to be known as the ‘Basic Structure Doctrine’.
As a general rule, unwritten constitutions are flexible while written constitutions are
rigid but there are exceptions. For example, the Constitution of Singapore (and Australia
too) is written but largely flexible.
c) Written and unwritten constitution
An constitution is said to be written when most constitutional laws are specifically
enacted such that they are contained in a formal document which, is however,
supplemented by other acts of parliaments that contain constitutional laws.
A constitution is said to be unwritten when there is no formal document referred to as
the constitution and constitutional laws are contained in a series of documents, which,
are simply acts of parliaments that contain constitutional laws.
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Advantages of written constitution

Some of the advantages of having a written constitution include:
 It ensures clarity. The principles are well defined and formal;
 It stabilizes and limits political power effectively. Written constitutions cannot
just be interpreted as whatever the government says it is at any given time.
 It is a direct source of reference as it is easily accessible and information about
them is easily obtainable
Disadvantages
  They are rigid and cannot be easily amended to keep up with society's changes
since they are entrenched;
 They are inaccurate of constitutional affairs of the country because they don’t
encompass the totality of the constitution applicable in any given country
 The unelected Judiciary have the key political role in determining what the
constitution is. It may thus override the elected Parliament which is the organ
empowered to make law by declaring the laws thus made as unconstitutional.
Unwritten Constitution
What are usually referred to as unwritten constitutions are not normally completely
unrecorded but found in scattered legislation supplemented by conventions exercised
by the people. The best examples are the constitution of Britain, Israel and New Zealand.
Advantages
 They are elastic and adaptable to change as they can be easily amended just like
any other Act of parliament, i.e. by a simple majority
 There is room for a tradition of ideals and practices to be incorporated in the
constitution. These ideals may form the basis of the principles.
Disadvantages
 They are not able to protect people’s rights effectively as they are not clearly
defined.
 Political powers are not clearly defined and instability may reign, for example,
courts are given too much power in the premise of translating the constitutional
principles which are to be found in the various sources of the constitution such as
statutes and acts of parliament, judicial decision, customs and usages
 They are vague and indefinite.
The unwritten constitution of Britain
The Magna Carta -1215: It contained statements of grievances the settlement of which
was brought about by the union of important classes in the community. It set out the
rights of various classes of the material community according to their different needs:
1) The church was to be free,
2) London plus other cities were to enjoy their liberties and freedoms,
3) Merchant were not subject to unjust taxation,
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It also laid down clause stating that no man should be punished expect by judgment of
his peers or of the law of the land and that to no one should justice be denied. It has been
described as a document having contributed to the origin of the writ of habeas corpus
and trial by jury but trial by jury and the writ of habeas corpus are said to have other
sources too. It cemented the people’s wish to a fair hearing.
Petition of right 1628:
It was a protest against:
1) Taxation without consent of parliament
2) Arbitrary imprisonment
 3) Use of commission of martial law even in time so peace.
4) And billeting of soldiers on private person.
The king yielded to these protests but its effects were weakened when Charles I held that
his prerogative powers had not thereby diminished.
Bills of right and acts of settlement 1688:
1) It outlawed the pretended power of suspending laws or execution by legal authority
without the consent of parliament by making it illegal,
2) That the levying of money for use by the crown by preference of prerogative without
grant of parliament for a longer time or in any manner that the same is or shall be
granted is illegal.
3) Raising and keeping of armies during peacetime without the consent of parliament is
illegal.
4) The election of members of parliament ought to be free.
5) That the freedom of speech and debates or proceedings in parliament ought not to be
impeached or questioned in any court of law or place out of parliament,
6) That excessive bail or fines imposed or cruel and unusual punishments ought not to
be imposed.
7) That all grants and promises of fines or forfeiture of particular persons before
conviction are illegal and void,
8) That for redress of all grievances and for the amending, strengthening and
preservation of the laws of parliament ought to be held frequently,
Act of settlement 1700:
1) Provided for succession to the throne,
2) Added certain important provisions complementary to those contained in the bill
of rights,
3) Government by and through parliament,
Other statutes include:
(i) Act of union with Scotland 1706,
(ii) Parliament Act 1911,
(iii) The supreme court of judicature act 1925,
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(iv) Minister of the crown act 1937,

(v) Statute of Westminster 1931,
(vi) Indian Independence Act 1947,
d) Unitary and Federal Constitutions
In unitary constitutions, sovereign power is vested in a single centralized government.
An example of this is Kenya.
In a federal constitution, power is divided among the states’ regions and then the central
government gets comparatively more authority and power.
Under a written constitution, the constitution will define which powers are exercisable
by the central federal government, and which powers are exercisable by the constituent
parts- usually known as states- of the federation. In a federal state, powers are usually
diffused rather than concentrated in any one body. The constitution has overriding force
and any conflict between the federal government and state government will be
determined according to the constitution. For centuries, Britain has been a unitary state,
with one parliament having ultimate law- making power over all the constituent
nations- England, Northern Ireland, Scotland and Wales. Where powers are devolved, to
local government and now to the assemblies of Northern Ireland, Scotland and Wales,
these powers remain subject to the United Kingdom Parliament’s ultimate control
(i) The right of choice and exit - A federal system allows citizens to compare political
systems and ‘vote with their feet’ by moving to a state they find more congenial.
(ii) The possibility of experiment - Federalism allows and encourages experimentation
in political, social and economic matters. It is more conducive to rational progress
because it enables the results of different approaches to be compared easily. The
results of experience in one’s own country are also less easily ignored than
evidence from foreign lands. All this is particularly important in times of rapid
social change.
(iii) Accommodates regional preferences and diversity/Unity in diversity - The
decentralisation of power under a federal constitution gives a nation the flexibility
to accommodate economic and cultural differences. These characteristics correlate
significantly with geography, and state laws in a federation can be adapted to local
conditions in a way that is difficult to achieve through a national government. By
these means overall satisfaction can be maximised and the winner-take-all
problem inherent in raw democracy alleviated.
(iv) Participation in government and the countering of elitism - A federation is
inherently more democratic than a unitary system because there are more levels of
government for public opinion to affect.
(v) The federal division of powers protects liberty- The diffusion of lawmaking power
under federalism is a shield against an arbitrary central government. By dividing
sovereignty, the federal division of powers reduces both the risk of
authoritarianism and the apprehension of it. The states help to preserve judicial
independence and impartiality as well. The existence of independent state court
structures prevents a national government from filling all the courts in the land
with judges believed to be its supporters. That this aspect of the federal compact
has not attracted much attention or comment in Australia is probably a function of
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history.
(vi) Better supervision of government - Decentralised governments make better
decisions than centralised ones, for reasons additional to the spur of competition
provided by the citizen’s right of choice and exit. State governments can be more
closely supervised because of lower monitoring costs. There are fewer
programmes and employees, and the amounts of tax revenue involved are smaller.
Citizens can exercise more effective control over government officials when
everything is on a smaller scale. Unlike the Commonwealth, the states cannot
create money, and this further limits the scope for abuse of power. Large
governments encourage wasteful lobbying by interest groups engaged in what
economists call ‘rent-seeking’, the pursuit of special group benefits or privileges.
(vii) Stability - Federations are exceptionally stable. Of the five countries that survived
the 20th century without a violent change of government, four are federations: the
USA, Canada, Australia and Switzerland. Stability is a cardinal virtue in
government. Stable government enables individuals and groups to plan their
activities with some confidence and so makes innovation and lasting progress
possible. Political stability is much valued by ordinary people because they are the
ones likely to suffer the most from sudden shocks or changes of direction in the
government of the country.
(viii) Fail-safe design - Besides acting as a brake on extreme or impetuous action by the
national government, federalism cushions the nation as a whole from the full
impact of government blunders by making it harder for any one group of
politicians to ruin the entire economy at once.
(ix) Competition and efficiency in government - Inefficiency in government usually takes
either or both of two forms. One is a tendency to higher tax rates, which is obvious
and easy to detect.
(x) Competitive edge for the nation - Often overlooked even by advocates of federalism
is the value of competition among the states as a means of enhancing the
international competitiveness of the nation as a whole. In other contexts, this is
quite a familiar principle. It is, for example, the basis on which international
sporting teams are selected. Out of the deliberately encouraged rivalry between
local, regional and state teams emerges the squad that will represent Australia in
the Olympics or other international events. Competitive federalism harnesses this
principle to the goal of earning a better standard of living for all.
Quasi- Federal Constitution:
 In the countries with this type of constitution, there are territorial units and
federal authorities just as in the federal constitutions. The differences is that they
are not entirely coordinated
Confederal Constitution:
 In the countries with this type of constitution, there are territorial units and a
federal authority just as in the Federal constitutions. However, the territorial
units hold more power than the central federal authority
e) Military Constitutions
 This kind of constitution provides for hierarchy of government structure with a
superior legislature and the executive and judiciary at the centre.
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Advantages
 In most cases, the constitution is supreme, limiting the power of the legislature to
both enact laws and amend the constitution.
 In a military constitution, the state organs are clearly defined in a hierarchial
structure
 It enhances nationhood
Disadvantages
  The doctrine does not clearly work because it will probably lead to the state
organs competing for power. Also, the legislature will be made powerless and
thus its powers to make laws will be too limited
f) Republican and monarchical constitution
In a republican constitution, power is transferred by means of presidential election,
while in a monarchical constitution: power is inherited from the king or queen by one of
his/her children.
In republic, such as Kenya and the USA, there will normally be a Head of state (usually
designated a President) who is directly elected by the people. In Britain by contract, the
monarchy remains , with the Queen as Head of state and holding widespread formal
powers (under the royal prerogative) in practice these powers are conventionally
exercised by the elected government of the day which is headed by the prime minister.
g) Quasi-permanent and Transitional constitution:
A transitional constitution is purposefully made for a given period of time whose limits
are clearly defined in terms of time of applicability. A good example is the Interim South
African Constitution of 1993 which was repealed by the 1996 permanent Constitution.
A quasi-permanent constitution, on the other hand, is created so that it can apply for
unlimited and undefined periods of time.
h) Presidential and parliamentary constitutions
In a presidential constitution powers are vested in hands of the president and the
president is the head of state. In a parliamentary system the prime minister is
answerable, to parliament and he is the head of government.
The merit of a presidential executive constitution is that there is a clear separation of
powers. The disadvantage is that there is too much power given to the president
 The principle of separation of power when applied results in a presidential
executive, which is autonomous government entitles under the parliamentary
type. The chief executive is the Prime Minister, who is a member of parliament
and is responsible for the legislature. E.g. Italy.
Finally, a constitution may be classified according to whether the powers and function of
the principal institution of the state- the executive, legislature and judiciary- are
separated or not. Under the united state constitution for example:
 Art 1 of the Constitution vests executive power in the President;
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 Art 2 vest legislative power in the Congress and Art 3 vests supreme judicial power
in the Supreme Court;
 The president is elected separately from Congress and may not be a member of the
Congress;
 The President may veto legislation passed by congress, but his or her veto may be
overridden by a two-thirds vote in the senate;
 The president appoints Supreme court Judges and other members of the upper
Judiciary;
 The Supreme Court has the power to declare acts of the President, Acts of congress
or of state legislatures unconstitutional and therefore unlawful.
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