CONSTITUTIONAL LAW

 The Scope of Constitutional Law

 What is Constitution?
 The Sources of a Constitution
 The Nature of a Constitution
 The function of the Constitution
 The Attributes of a Good Constitution
 The Constitution as a social contract
 Classification of Constitution
 Constitutionalism
 Principles of Constitutionalism
 Similarities between Constitution and Constitutionalism
 Differences between Constitution and Constitutionalism

The Scope of Constitutional Law

According to one very wide definition, constitutional law is that part of the Law
which relates to the system of government of the country or it can also be defined
as meaning those laws which regulate the structure of the principal organs of
government and their relationship to each other and to the citizen, and determine
their main function.

Constitutional law pervades all areas of law in that there is hardly any department
of law which does not, at one time or another become of constitutional importance.
In the field of family law, the importance of the protection of family life is stressed
in the Nigeria 1999 Constitution and African charter on human rights. In industrial
law, the freedom of association for industrial purpose and the law of picketing are
of constitutional importance. In the sphere of public order and criminal law, the
citizen looks to the court for protection. The constitutional lawyer has always had a

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particular interest in the means which the law provides for safeguarding individual
liberty.

What is Constitution?

Constitution refers to a system laws and principles which act as a base for the
governance and control of a nation. It determines the distribution and control of
powers, organization and function of the government, primary organs of the state
rights and duties of the citizens as well as remedies for unconstitutional acts. In
other words, “Constitution” means the whole system of legal rules which regulate
the government of a country. A constitution is the whole system of legal rules,
non-legal rules and extra-legal rules that are enforceable by the court. The legal
rules and extra-legal rules are enforceable whereas the non-legal rules are not
enforceable by the courts but nevertheless, are generally accepted by the people as
binding on them e.g. conventions, customs and practices. Further, constitution
could be seen as a document having a special legal sanctity which sets out the
framework and the principal functions of the organs of government within the
state, and declares the principles by which those organs must operate.

In the case Attorney-General of the Federation v. Abubakar (2007) 10 NWLR

pt. 1041 at 118-123, the Supreme Court describes the constitution as follows:

The Constitution of any country is usually called the organic law or

grundnorm of the people. It is the formation of all laws from which the
institutions of state derive their creation and legitimacy. It is the unifying
force in the nation and it apportions rights and imposes obligations on the
people who are subject to its operations. The Constitution of a nation is,
therefore, a very important composite document, and its interpretation is
subject to recognized cannons of interpretation known to law and designed

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to enhance and sustain the reverence in which constitution are held the
world over. In interpreting the Constitution, a court must have regard to the
following principles: (a) effect should be given to the every word; (b) a
construction nullifying a specific clause will not be given to the
Constitution unless absolutely required by the context; (c) a constitutional
power cannot be used by way of condition to attain unconstitutional result;
(d) the language of the Constitution, where clear and unambiguous, must
be given its plain evident meaning unless where such interpretation will
lead to absurdity or will be in conflict with other provisions of the
Constitution; (e) the Constitution of the Federal Republic of Nigeria is an
organic scheme of government to be read as an entirety, and not disjointly;
(f) while the language of the constitution does not change, the changing
circumstances of a progressive society for which it was designed yields
new and fuller import to its meaning; (g) a constitutional provision should
not be construed so as to defeat its evident purpose;( h) under the
Constitution conferring specific powers, a particular power must be granted
or it cannot be exercised; (i) when the worlds in the constitution express
their meanings plainly distinctly and perfectly, there is no need to have
recourse to any other means of interpretation; (j) words of the Constitution
are not to be read with stultifying narrowness; (k) the courts cannot amend
the Constitution or change the words in the constitution. they must accept
the words, and so far as they introduce change, it should come only through
their interpretation of the meaning of the words, which change with the
passage of time and age; (l) the court must employ care and take the
circumstances of the people into consideration; (m) the historical facts,
which are necessary for comprehension of the subject matter may be called
as aid; (n) a liberal approach to the interpretation of the constitution should
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 be adopted; (o) the mischief which a provision of the constitution is meat to
cure should be arrested.

The word “Constitution” has also been defined by different scholars. Bolingbroke
stated in (1733) thus:

“By constitution, we mean whenever we speak with propriety and

exactness, that assemblage of laws, institutions and customs, derived from
certain fixed principles of reason; that compose the general system,
according to which the community had agreed to be governed or in more
modern words “Constitution in its wider sense refers to the whole system
of government of a country, the collection of rules which establish and
regulate or govern the government”.

According to Lawrence Tribe (1978) “the constitution is a historically

discontinuous composition, it is the product, overtime, of a series of not altogether
coherent common promises; it mirrors vision or philosophy but reflect instead a set
of sometimes reinforcing and sometimes conflicting ideas and notion”. Whilst this
may be true of the American constitution, it is certainly not true of all types
especially in developing nations where constitution are often products or heritage
of colonial rule.

In the same vein, J. Bryce defines a constitution as “a frame of political society

organized through and by law i.e. to say one in which law has established
permanent institutions with recognized functions and definite rights” To S. E.
Finer, a constitution means “codes of rules which govern the allocation of
functions, powers and duties amongst various governmental agencies and define
the relationship between them and the public”. In the words of C.F. Strong “a true
constitution will have the following facts about it clearly marked. First, how the

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various agencies of government are organized, secondly, what power is entrusted
to these organs and thirdly in what manner is such power to be exercised.

These definitions reveal certain common features. They indicate that the term
constitution includes the laws and rules which established and regulate the
government that are officially contained in one document called the written
constitution, secondly, it also includes the laws and rules which regulate the
government, which are not contained in the constitution. Whereas, in the third
sense, a constitution would refer to a system of laws and rules, which impose or
purport to impose, define limits on governmental powers.

From the foregoing, it can be gleaned that there is no stereotype definition of “

Constitution” nor is there a fixed standard that a particular system of law must
fulfill before it could termed a constitution. Suffice it to say that there is no ideal
constitution appropriate for all countries of all time. As every country is different,
so are their respective constitutions different.

The Sources of a Constitution

The sources of the various provisions found in a constitution are many, such as the
past experiences of the country. For instance, the social economic, political,
historical, geographical and notable historical documents such as the British
Magna Carta of 1215, American Bill of Right statutes passed by parliament,
decrees and edicts of military government, the intellectual works of eminent
writers, jurists, historians, philosophers, essayists, politicians, and statesmen such
as John Locke, A.V. Dicey, and so forth, case law or judicial precedents, customs
and way of life of the people, rules and conventions guiding human behaviour, the
constitutions of other countries, the deliberations of constitutional conferences or
Constituent Assemblies which may draft the constitution of the given country,

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rules of international law and so forth are important sources to draw from when
writing a constitution for a country.

The Nature of the Constitution

The nature of a constitution is determined essentially by the source of its authority

i.e. whether or not it is an original act of people, and, secondly by the justiciability
of its provisions i.e. whether it is enforceable in the court or merely a political
charter of government un-amenable to judicial enforcement. A Constitution
whether written or unwritten, rigid or flexible, unitary or federal etc. has two
natures:

1. It is an expression of the will or desires of the people who make up the state
or country
2. It is a social contract between the government as an entity and the people on
the one hand. It is a contract between those who hold public offices and the
people on the second hand, and it is also a social contract between and
among the various ethnic peoples who make up a state or country on the
third hand.

A constitution is an expression of the will of the people of a country or given

political unit. The constitution may expressly spell out the following:

1. The desire of the various multi-ethnic people or race, to live together as one
people and the legal basis on which they want to live together in such given
political entity.
2. The ideas and fundamental objectives and directive principles of state policy
they want to lead their lives.
3. Public revenues and the control of the public funds of the country or state.

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 4. The type and structure of government the people want at the various levels
of government, their functions, powers and limits thereto.
5. The establishment of armed forces and their traditional, constitutional or
professional roles
6. The framework, function and powers of the public service or public
institutions and authorities.
7. The internal structure of the country, political institutions and the functions
and powers they want the government to exercise at the various levels of
government.

The function of the Constitution

The functions of the constitution include the following.

1. It states the aims and objectives of the people. For example, the preamble of
the 1999 Constitution provides thus:

“We the people of the federal republic of Nigeria having firmly and
solemnly resolved to live in unity and harmony as one indivisible and
indissoluble sovereign nation under god dedicated to the promotion of
inter-African solidarity, world, peace, international co-operation and
understanding and to provide for a Constitution for the purpose of
promoting the good government and welfare of all persons in our country
on the principles of Freedom, Equality, and Justice, and for the purposes of
consolidating the Unity of our people do hereby make, enact and give to
ourselves the following Constitution:- “

In the same vein, the preamble to the constitution of the United States of
America provides thus:

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 “We the people of the United States, in order to form a more perfect
union, established justice, insure domestic tranquility, provide for the
common defence, promote the general welfare, and secure the blessings
of liberty to ourselves and our posterity, do ordain and establish this
constitution for the United States of America.”
2. It creates a national government.
3. It controls the relationship between the governments. See part II of the first
schedule to the 1999 Constitution.
4. It defines and preserves personal liberties. See chapter IV of the 1999
Constitution and Bill of Rights of the U.S, Article 1 sections 9 and 10,
article III section 2 and 3, article IV, thirteenth Amendment Ninth to the U.S
Constitution, 1789.
5. It contains provisions to enable the government to perpetuate itself. See
sections 1, 2, and 3 of the 1999 Constitution.
6. It divides power between the federal and state governments.

Attributes of a Good Constitution

Below are characteristics of a good constitution

1. Clarity and Definiteness

By clarity and definiteness we mean every clause of the constitution should be

written such a simple language, as should express its meaning clearly.

2. Brevity

A constitution should not be too lengthy and voluminous. It should contain only
important things and unimportant should be left out.

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 3. Comprehensiveness

By comprehensiveness we mean the constitution should be applicable to all tiers of

government. It should define the structure, power and function of the organs of
government as well as the duties and rights of the government and the citizens.

4. Adaptability

Another basic characteristic of a good constitution is that it must be adaptable to

the changes in the society. It must always adapt to the social, political, economic,
technological and other changes that are inevitable in the life of a country for its
development and process. It should be elastic and also be liberally interpreted to
meet the ever changing social, economic and political needs of the country. Where
the constitution is not flexible, it will be difficult for it to meet the needs of the
citizens in times of emergency. This does not also mean that the constitution
should be too flexible, as that will also allow for easy interfering with the
provisions of the law. The constitution should make special situations where it can
be amended to meet certain developments in the society

5. Separation of the powers of government

Another essential feature of a good constitution is that it must enshrine the

principle of separation of power between three arms of government. See sections 4,
5 and 6 of the 1999 Constitution. This separation is necessary to prevent abuse of
power and dictatorship.

6. Responsibility and Accountability

Another essential characteristic of a good constitution is that, it ensure

accountability in government by making laws which will make the actions of the

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government illegal whenever the make decisions without consulting the masses. A
good constitution make ensure that public officers, government and public
institutions in the country, carry out their duties an obligation with the consent of
the people whom they represent.

In the constitution of the federal republic of Nigeria for instance, it is provided that
where the president, governor or a senator act illegally, he can be removed from
his office if the a considerable number of the people who agrees to that. Even
though this is not really feasible in the country today, it is actually a good
provision because it will make government officials accountable (to some extent);
knowing fully well that the masses have the legal power to remove them from
office if they misbehave.

7. Protect individual liberties

A good constitution must contain the fundamental rights and freedoms of the
people. See e.g. Chapter IV of the 1999 Constitution.

8. Independent judiciary

Another quality of a good constitution is that it must establish an independent

judiciary. The judiciary should not be under the country of the executive and
legislature. It must be free from any political interference

Constitution as a Social Contract

A constitution is a social contract between the people and government. The second
nature of a constitution is that it is a contract. A constitution is a Legal Contract
between the people and government containing legal rights which have force of
law and are enforceable. A Constitution is the pre-agreed contract and supreme
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document defining and regulating the relationship between the people and the
government and its terms are binding on all persons and authorities in the country
A constitution guarantees rights and also attracts obligation or duties to the:

i. Individual and
ii. The government or public officers and authorities on the other hand.

Classification of Constitution

The classification of constitutions have been based on the yardsticks of

documentation, amendment procedure, type of government prescribed therein,
mode of devolution of governmental powers.

Written and Unwritten Constitution

Written constitution refers to the constitutions the law of which are properly
enacted and duly frame and states in a single documents. The most fundamental
attribute of written constitution is that it cannot be changed, amended or repeated
like an ordinary enactment. See section 9 of the 1999 Constitution and article V of
the US Constitution. Examples of countries that operate written constitution
include: USA, Canada, India, Nigeria South Africa and Sri Lanka. In contrast,
unwritten constitution refers to the constitution which is not embodied in a single
document. An unwritten constitution does not mean that no provisions or laws of
the constitution will be found in written form, but it means that they are not legally
incorporated in a single document, however, they are document. Examples of
countries that operate unwritten constitution include: UK, New Zealand, and Israel.

Rigid and Flexible Constitution

Constitutions are further classified according to the method by which they may be
amended. The process of amending a constitution is the hallmark of the sanctity of

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the constitution and the degree of its acceptability by the people. A true
constitution should prescribe its own method of amendment. A rigid constitution is
one that requires a special procedure and cumbersome process for its amendment.
A.V. Dicey defines a rigid constitution as one under which certain laws, called
constitutional laws or fundamental laws “cannot be changed in the same manner as
ordinary laws. A rigid constitution set forth “specific legal/constitutional obstacles
to be overcome” before it may be amended, such as special approval of the people
by referendum, a supermajority or special majority in the legislature, or both. For
example, section 9 (2) of the 1999 Constitution sets out the amendment procedure
in the following terms:

An Act of the National Assembly for the alteration of this Constitution, not
being an Act to which section 8 of this Constitution applies, shall not be
passed in either House of the National Assembly unless the proposal is
supported by the votes of not less than two-thirds majority of all the
members of that House and approved by resolution of the Houses of
Assembly of not less than two-thirds of all the States.

In contrast, a flexible constitution is one that may be amended by the legislature

through the same process as any other law within the legal system. For example,
the constitutions of Nigeria, Australia and United States of America, India are
rigid, while the British, Israeli and Norwegian, New Zealand constitutions are
flexible.

Constitutionalism

Constitutionalism refers to the regularity of political life within a state by means of

a constitution. In other words, it means limited government. i.e. a system of
restraint on both the rule and the ruled. Constitutionalism asserts that there are

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fundamental limits which must be observed in the relationship between the ruler
and the ruled, when the power relationship among the groups in political society
becomes regularized under law and subject to well-defined restraint, the
constitutional government exist.

The concept of constitutionalism is a mechanism that provides legitimacy to a

democratic government. It cannot and should not be confused with the legality of
the acts of the officials in a government setup. Constitutionalism is far more
important than having a written Constitution. With some exceptions most of the
countries have Constitutions but it in no way means that they practice
constitutionalism. Some of the basic principles developed over time that embody
the concept of constitutionalism are separation of powers, judicial control and
accountable government.

The concept of constitutionalism has been recognised by the Indian Supreme Court
in Rameshwar Prasad v. Union of India. The Court stated, “The
constitutionalism or constitutional system of Government abhors absolutism – it is
premised on the Rule of Law in which subjective satisfaction is substituted by
objectivity provided by the provisions of the Constitution itself.”

In IR Coehlo v. State of Tamil Nadu, the Court held that Constitutionalism is a

legal principle that requires control over the exercise of governmental power to
ensure that the democratic principles on which the government is formed shall not
be destroyed. Chandrachud, CJ, in Minerva Mills case observed, – “The
Constitution is a precious heritage and, therefore, you cannot destroy its identity”.

Principles of Constitutionalism

Constitutionalism is an amalgamation of the following underlying principles

1. Separation of Powers
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Separation of powers divides the mechanism of governance into three branches
i.e., Legislature, Executive and the Judiciary. This not only prevents the
monopolization of power, but also creates a system of checks and balances. As this
division of powers is in the Constitution itself, this becomes an effective tool for
ensuring Constitutionalism.

2. Responsible and Accountable Government           

In a democratic setup, the government is elected so that it can serve the people who
help elect it. It is in this sense that the electors have a right to demand
accountability and answers from their government. Therefore, when the
government fails the expectations of the electorate, the authorization to govern is
revoked by voting them out.

3. Popular Sovereignty

The concept of popular sovereignty lays down that the government derives its
legitimacy from the people. No corporate body, no individual may exercise any
authority that does not expressly emanate from it. Even though there is a certain
sovereign entity that is empowered to govern, ultimate sovereignty resides in the
nation. The power of such a sovereign entity emanates from the public.

4. Rule of Law

The presence of rule of law means that the government does not belong to men but
to the laws. Dicey lays down three essential components of Rule of Law:

 Nobody is to be punished except for a specific breach of law that is

established in an ordinary legal manner before ordinary courts of law.
 No one is above the law.
 Courts play a vital role in protecting the rights and freedoms of an individual

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 5. Independent Judiciary

The independence of the Judiciary is the essence of any liberal democracy and the
foundation of a free society. The Judiciary is the upholder of Rule of law and if its
independence is taken away, it puts the entire rule of law in jeopardy. The
Constitution also envisages the separation of the judiciary from the Executive
under Article 50.

6. Individual Rights

The rights of the individual shall be at the highest pedestal for constitutionalism to
thrive. The constitutional setup in India gives these rights the importance that they
deserve by engraving them in Part III of the Constitution. These individual rights
have not only been protected by the courts but have also been interpreted in a
manner where their effect and implementation has broadened.  The enforcement of
these rights is ensured by the Constitutional Courts i.e. the Supreme Court and the
High Courts.

7. Civilian control of the military

Apart from these features, constitutionalism envisages that the control of the
military should be in the hands of a civilian government so that the military does
not interfere in the democratic decision making or attempt a military coup.

8. Police Accountability

Constitutionalism also envisages that police while performing its duties shall
uphold the rights, freedoms and dignity of the individuals, the same can be ensured
by bringing the police under the control of laws and courts.

Similarities between Constitution and Constitutionalism

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Constitution and constitutionalism are overlapping concepts, although the first
refer to a written body of laws and legislation and the second is a complex
principle and system of governance. Some of the similarities between the two
include:

1. Both refer to the limits and features of the system of governance of a

country. Constitutionalism would not exist without a constitution, and a
constitutional way of governing a country requires limits and boundaries to
the central authority;
2. Both influence the actions of both government and population. Besides
providing a framework for political and institutional structure, the
constitution sets out the main rules that all citizens should respect.
Furthermore, ruling in a constitutional manner means that the government
applies the regulations outlined in the constitution to limit and manage the
citizens’ acts – always respecting individual and collective rights;
3. Both protect and preserve individual and collective rights, preventing the
central government from abusing of its powers and infringing on the
citizens’ basic freedoms; and
4. Both have evolved and significantly changed during the last few centuries,
benefiting from the spread of democratic ideals and becoming key features
of the majority of Western countries.

Differences between Constitution and Constitutionalism

The main difference between constitution and constitutionalism lies in the fact that
the constitution is generally a written document, created by the government (often
with the participation of the civil society), while constitutionalism is a principle
and a system of governance that respects the rule of law and limits the power of the

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government. Most modern constitutions were written years ago, but laws and
norms had already been evolving and mutating for centuries, and continue to do so.
The constitution (and laws in general) is a living entity that should adapt to the
changing features of the modern world and of modern societies. Failing to adapt
the constitution – without losing its core principles and values – may lead to an
obsolete and unadapt governance system. Other differences between the two
concepts include:

 Constitutionalism is based on the principles outlined in the constitution

– or in other core legal documents – but it is also a principle of its own. The
idea of constitutionalism is opposed to the concept of authoritarian and
despotic rule and is based on the belief that the power of the government
should be limited in order to prevent abuses and excesses;

 The constitution is often a written document, while the principles of

constitutionalism are generally unwritten. Both constitution and
constitutionalism evolve with the promulgation of democratic ideals –
although they do not always proceed at the same speed. There can be a
constitutional form of governance – that respects the rights of the citizens
and promotes democratic values – even though the national constitution is
outdated. At the same time, an inefficient democratic government may not
be able to rule in a constitutional way, despite the existence of a constitution.

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