NOTES ON CONSTITUTIONAL LAW: Definition of a Constitution

                     DEFINITION OF A CONSTITUTION

The word “constitution” is defined differently by different people depending on the subject matter they consider.

Broadly, the term constitution means the whole system of rules that establish and regulate the administration of a given country i.e. the rules establishing the various organs of government, their powers as well as the limitation placed on such powers.

The rules of the constitution may be partly legal in the sense that they are recognized and enforced by the court of law, or partly non-legal in that they are not recognized or enforced by the court of law.

In this sense, the word constitution has been defined in a restrictive sense. In countries like Britain, its constitutional rules are found enacted and scattered in different statutes which the British parliament has passed from time to time. For example, the Act of Settlement that regulates succession to the throne in the British society, the Peoples Representation Act that has introduced changes in the electoral process thereby guaranteeing for Universal Adult Franchise, the Parliament Act that has curtailed the powers of the House of Lords.

The rules of the constitution may also evolve through judicial interpretation of the provisions of the constitution. They may also evolve by the working of government e.g. the queen can withhold her assent to a bill passed by the House of Parliament, no money bill can be initiated in the House of Lords. In determining what the constitution is in such a country, ones beam light should be on the workings or what happens in such a country and not on the document called the Constitution.

In other countries of the world, constitution has come to mean a single document or related document establishing the various organs of government, stating their powers, as well as, the rights of the citizens against the government in a state. In this sense, the word Constitution has been defined in a restrictive sense i.e. the whole system of government, whose rules are found or enshrined in a single document or related document e.g. the constitution of USA and the that of the Federal Republic of Nigeria.

The word Constitution gained prominence or currency after the American Declaration of Independence in 1776. The American constitution provided to the effect that: “we the people of the United States of America do and hereby enact unto ourselves this constitution.” From the preamble of the American constitution above, it has become a practice for countries to call a document establishing and regulating their various governments as the constitution.

The rules of the constitution may provide a general or skeletal provision establishing the various organs of government. Broadly, they may be rules that regulate the exercise of powers by these organs of government.

The rules of the constitution may be modified, amplified or altered by various usages, conventions or practices of the government. They may also evolve by judicial interpretation by the court on the words enshrined in the constitution. In countries where the judiciary/court has been made the final arbiter, the word constitution has come to mean no more than what the court says it is.

In looking at what the constitution is, one ought to take into consideration not only the written words of the constitution as contained in a document form but also the usages, conventions, and practices as well as the judicial interpretation of the provisions of the constitution.

                             SIGNIFICANCE OF THE CONSTITUTION

The significance of the constitution can be noticed in a country where the grundnorm is respected and implemented to the latter by the organs of government. In other countries the constitution is set aside rather, the people are governed by rules or practices of the government. In determining what the constitution is in such a country, one ought to consider the working of the executive rather than the document called constitution. The real significance of the constitution can be noticed in countries that are dedicated to the rule of law, democracy and limited government. By limited government, it means where the organs of government while exercising the powers vested on them feel bound to act strictly in accordance with the provision of the constitution.

 SIGNIFICANCE OF HAVING THE CONSTITUTION CONTAINED IN A DOCUMENT FORM

The constitution has come to be enacted as such with the view to accord them as statutes higher than the ordinary law. Hence any law inconsistent with the provisions of the constitution is declared inconsistent. In Marbury V. Madison, the supreme court of the US held to the effect, any law that is inconsistent with the provision of the constitution is null and void.

In countries like New Zealand, even though its constitutional rules are embodied in a single document, its legislature amends the constitution in like manner as the ordinary laws. In such a situation, it makes void the essence of having the constitution contained in a document form.

         REASONS FOR THE ENACTMENT OF THE CONSTITUTION

1. The people of a country may enact unto themselves a new constitution because of their desire to break away and make a new start in the life of their nations e.g. the 13 colonies of Britain when they succeeded to form the Federation of the United States of America.

2. Some factors may be geographical. Nations that are homogenous or share cultural similarities may want to stick together after freed from a foreign power. e.g. the Southern Cameroon refused to remain in Nigeria at the eve of Independence in 1960 but rather decided to form a nation with Northern Cameroon.

3. Countries that have acquired independence through war may enact unto themselves a new constitution.

4. Countries that have also changed an existing government may also enact a new constitution that will conform and give validity to the existing legal order. e.g. the South Africans during the apartheid-led regime.

5.  People of divergent race, religion, or nationality may come together to form a single government for certain purposes and at the same time remain independent in relation to certain matters.

The real importance or authority of the constitution may not be because of the reasons why the people enact a constitution unto themselves but on the limitations placed on the various organs of government in the exercise of their powers. These limitations may take a variety of form e.g. the Irish constitution has restricted its legislature to enact laws in respect to Fundamental Human Rights, as well as its own amendment. It has prohibited the legislature from passing laws permitting divorce.

In countries like Nigeria and the US, its constitutions have provided more limitations such as the division of powers between the various tiers of government. It has also rendered the legislature incompetent in enacting laws bordering on all subject matters.

                                      TYPES OF CONSTITUTIONS

1. Written and unwritten constitution

2. Flexible and rigid

3. Federal and unitary

4. Confederation

5. Presidential and parliamentary

6. Republican and monarchical

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