Constitutionalism: Doctrines and Practices

Constitutionalism: Doctrines and Practices

Working Paper No. 5 of 2016

By

Dr. Jimmy Chulu, PhD

Consultant- School of Social Sciences & Business Studies

Copperstone University, School of Post-Graduate Studies***Kitwe, Zambia

21th June, 2016

This article may be used for research, teaching and private study purposes. Any form of production and distribution

of the material content of the article by anyone is strictly not allowed without express permission of the author.’

The publisher does not make any representation that the contents will be complete or accurate or update as the

remarks are personal views of the author.

1
About the Author

Dr. Jimmy Chulu, PhD holds a degree Philosophiae Doctor -

Development Studies from Copperstone University. He also holds a Masters’ degree in

Development Studies from the Copperstone University; and a Bachelor’s degree in Development

Studies from Zambian Open University. In addition, possesses an International Diploma in

Business Accounting (United Kingdom), National Accounting Technician and Certificate in

Accounts and Business Studies. He is a Governance and Decentralization specialist who has

worked for the Government of the Republic of Zambia for many years, where he rose to the

position of Assistant Director in the Ministry of Local Government and Housing. His the author

of the following books: Public Finance in Developing Economies, Towards A Philosophy of

Decentralization in Developing Countries, Feminist Perspective that Poverty is Gendered, A

Philosophy of Development in the African Context, Vote buying of Electorates: A Case Study of

Parliamentary By-Elections, Democratization of Politics in Africa and Cooperative Movement:

A Case for Rural-Urban Economy. He has also written extensively about the local government

and decentralization reforms. He can be reached at: Mobile: +260-974057578, Email:

jimmyjesse3000@yahoo.co.uk or drchulu2015@gmail.com

2
Abstract

In comparative terms, constitutionalism should be based on the relationship between the

citizenry and the government.1 The doctrines and practices of constitutionalism do govern the

socio-political and economic relationship within a given nation with a particular distribution of

state power settings. Many experts of constitutionalism argue that a high degree of consensus

among the organs and institutions of governance can provide a more transparent system to avoid

a power struggle. There is so much power struggle in most nations of the world sometimes due to

bad constitutions and to a larger extent inept leadership to govern the affairs of any given nation

is a major contributing factor to the many failed governance systems in the world today. A

predictable and stable constitution process is an important yardstick to good governance and

democracy.

Constitutionalism is at the core of good governance and democracy in the world today as it can

provide the necessary checks and balances on the use of excessive state power of the different

organs of government. The protection of individual liberties and rights within the dictates of

constitutionalism is fundamentally essential to developing countries where sometimes excessive

abuse of state power is normally the order of the day. Often the rampant abuse of state power is

done with impunity even when certain portions of constitution are very clear. Most of the

developing countries fail to uphold the rule of law as guaranteed by the constitution in order to

1
Constitutionalism in any given state includes those laws which regulate the structure and functions of the principal organs of
the government and their relationship with the citizenry. It is the rules, principles and practices that are the cornerstone of this
relationship between various organs of the state .Constitutionalism does not suggest in its total sum the whole legal system, but
that the manner in which the fundamental rights, powers and duties are enshrined in the statutes and laws of the land.

3
promote governance and democracy for a just and fair society because of greed for

power.2However, a notion of the constitutionalism forms a good practice of democracy and

constitutional government which important to achieving development for all.

Introduction

In the working paper for the month of April, 2016 entitled Constitutionalism: A Theory and

Practice the author undertook a literature review on the theory and practice of constitutionalism

in the context of democratic, autocratic, dictatorial and totalitarian regimes. The author examined

the concept of constitutionalism and democracy in a constitutional democracy. In addition, the

paper also underscored a critical review of how the different types of constitutional democracy

had evolved across the globe. The succeeding working paper for the month of June, 2016

discusses the theories and classical conceptions of constitutionalism from the perspectives of

doctrines and practices of constitutionalism throughout the world. The working paper draws

insights and information from the authors literature review on the doctrine and practice of

constitutionalism as a Governance and Development Expert. The author is inspired by some of

the political theorist’s contributions in the ancient and modern times to school of thought on the

doctrine and practice of constitutionalism. Thereafter, it draws a conclusion on the issue of

theory.

2
A constitution is a legal document) which prescribes the framework and principal statutes (written or un-written) of the organs
of state. In most countries such as United States (US), constitutions have an overriding legal force, which provides the legal basis
for interpretation of constitution provisions. In principal, a constitution refers to the whole governance structure of any nation or
simply the collection of rules and procedures under which the governance and rule of law is well established and regulated. Most
constitutional systems in the world are founded partly on Acts of Parliament and partly upon political practices and establis hed
by the various organs of government for carrying out their own tasks. For example, the US constitution is considered as a
synthesis of legal doctrines, institutional practices and political norms (Blaustein et al 1986; Blaustein et al 1971).

4
Evolution of Constitutionalism

Many specialists of constitutionalism such as Locke propounded that no government which fails

to recognize fundamental rights could be said to be legitimate. In the olden days, constitutional

government was one whereby the state power to make laws was divided between king, Lords,

and Commons. Locke distinguished the state power thus the executive and federative, by

legislative one, were attributed to the king along with his share of the legislative power. The

essential of this was the separation of power which provided a sticking balance in the state

powers in constitutionalism. For example, Act of Settlement in 1701 was instrumental in creating

the independence of the judiciary thus laid a basis for Montesquieu's interpretation of the

separation of powers in broader and strict functional terms (Blaustein et al 1986; Blaustein et al

1971).

In the works entitled “The Spirit of Laws (1748)” Montesquieu stated that:

The formulation of the doctrine is one which distinguishes the legislative,

executive, and judicial functions and attributing each to a separate individual or

group in order to achieve a universal acclamation.

This, of course was institutionalized in the American and French revolutions and can be cited as

the basis of nineteenth-century constitution making process. The ideological stimulation of the

French revolution of 1789 was followed by a series of coup d'état-like revolutions in 1833, 1848,

1851, and 1871 and the American Revolution seemed to prove that a community's political order

was rationally constituted but also was an act of political decision making of an organized and

legitimate government (Blaustein et al 1986; Blaustein et al 1971).

5
In his arguments, Montesquieu pointed out that the judicial power exercised no power at all. By

contrast this did not suggest that the judiciary had no functional power but rather dependent on

how the executive arm of government respect the rule of law. There arose a question on the

mode of adoption of constitutions in most countries as to whether the contents and the process

could be protected by law (Blaustein et al 1986; Blaustein et al 1971). Ideally, many argued that

the independency of the judiciary was highly doubtful because the interpretation of the statues

was the preserve of the judiciary. The ability for the judiciary to rule against the state otherwise

remains a key challenge. It is for this reason that some countries do adopt constitution by popular

people’s representative such as the constituent assembly while others through the legislative

assembly. The latter is normally contested on the basis that it is not comprehensively people’s

representative.

Political scientists argue that lack of constitution legitimacy does affect the process at the

formative stage of constitution making agenda. The problem confronting the modern constitution

making is that of fitting past experience with constitutional government to the particular

circumstances of time and place. In developing nations, this task often involves complicated

problems of socio-political adaptation. But such adaptations apart, there is a general problem of

determining the components of a model constitution. Within a particular socio-political context,

the United States stands out to be a model of constitutionalism in the world. It is possible to

formulate a broadly conceived constitutionalism in any given nation within the common doctrine

and practice that can stand the test of time (Bowie et al 1954; Greenberg et al 1993).

In a nutshell, a constitution is body of doctrines and practices that forms a basis for the

fundamental principle statutes of any given state. In some countries, such as the United States of

America (USA), the constitution is specifically a written document; while in the United

6
Kingdom (UK), that are enshrined in various statutes and laws that help in the governance

structure (Sunday 2013; Thurow 1967). So often, written constitution comprises also a body of

traditional or customary practices that may or may not be considered to be part of the entire

constitution. Virtually, a legal binding document called the constitution is generally accepted or

not accepted by every government but many governments claim to be governed by the provisions

of the constitution in a consistently constitutional manner. However, though most governments

claim to govern by the statutes very few governments or states especially in developing countries

are good at adhering to the provisions of their own constitutions. 3

Arising from the above assertions, it is important to gain an understanding about the doctrines

and practices of an ideal constitutionalism. The theory of constitutionalism originated from the

ancient Greeks especially in the systematic, theoretical, normative, and descriptive writings of

Aristotle( Aristotle 1972; Aristotle 1972).In his writings entitled “Politics, Nicomachean Ethics,

Constitution of Athens, and many others, Aristotle used the Greek word for constitution

(politeia) in several different senses. The simplest and most neutral of these was “the

arrangement of the offices in a polis” (state). In this purely descriptive sense of the word, every

state or nation ought to have a constitution, no matter how badly or erratically governed it may

be (Aristotle 1972; Aristotle 1972; Barker 1980).

3
Constitutionalism is descriptive of a complicated concept, deeply embedded in historical experience, which subjects the
officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the
rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials…. Throughout the literature dealing with
modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political
society government officials are not free to do anything they please in any manner they choose; they are bound to observe both
the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may
therefore be said that the cornerstone of constitutionalism is the concept of limited government under a higher law (Blaustein et
al 1986; Blaustein et al 1971).

7
There is growing debate as to why constitution making process on the Africa continent is full of

suspicion and lacks public confidence. Mostly, the lack of credibility in the constitutional

making process is that it is not people’s driven process but the party in power driving the agenda.

In the case of Zambia, the Mung’omba Constitution Review Commission draw a lot of strength

from the submissions of the citizens and recommended for the adoption of the Constitution

through a Constituent Assembly, a recommendation that the Movement for Multi-Party

Democracy (MMD) government did not support (ZEC, 2003, p.4).It was argued by those in

power that it was very costly to adopt the constitution through the constituent assembly because

resources ought to be spent prudently on the well-being of the people from the economic terms.

On the contrary, proponents of adopting the constitution through the constitute assembly argued

that the only safeguard was to protect the contents and the process of constitution through the

adoption by constitute assembly and not through parliament.

This shows that there has been a tendency of successive governments not to adopt all the

recommendations made by the people in the previous Constitution making processes. From the

authors’ review and evaluation of the history of Constitution making in Zambia from 1968 to

2011, what is evident is that the political power has always failed the people because the

Constitution making process has been an agenda for a party in power not the people who put the

government in power (ZEC 2003, p.6).This defeats the whole purpose of the constitution being

the basic law of the land which should go through the process of legitimization and

popularization and not a mere academic exercise as the case was with Mwanakatwe Commission

when the MMD government rejected almost 80% of the recommendations. In short, it is the

people who should always be the driving force behind any constitutional making process in order

to legitimize and popularize the Constitution (Henriot 2003, p.14).

8
During later part of the 18th century, the word “constitution” was identified a single document

mainly following the American and French Revolutions. Many constitutional experts were of the

view that the political significance of the new concept of constitutions was stressed by the

radicals such as Tom Paine (Blaustein et al 1986; Billias 1990). In their perspective, it was held

that a constitution is an antecedent to a government, and a government is only the creation of a

constitution. Similarly, one can deduce from the factor that a constitution is not the act of a

government, but of a people constituting a government thus a government without a constitution

is power without a right (Beer 1979; Billias 1990).

Today, in both developing and developed countries the constitution making process normally

follows a fundamental political event, the conferment of independence on a subordinate territory;

a successful revolution; the creation of a new state by the uniting of states which were formally

separate; or reconstruction of a country’s institutions in event of a war. A documentary

constitution normally is reflection of the beliefs and political aspirations of those who have

framed it. In the late 1990s, after the collapse of socialism in Eastern Europe for instance, saw an

end of constitution making process, as the revolution was against socialist regimes. This led to

the creation of new structures that embraced liberal and democratic tenets thereby divorcing the

former.

After 1945, most of British colonies acquired their independence, following numerous efforts

they created their constitution on the basis of the “Westminster Model” constitution making

process. It was by then a common practice of constitution making as it guaranteed nations of the

world fundamental rights and broad political declarations as most of them were newly

independent countries (Elster et al 1954; Friedrich 1950).

9
From the dimension of a written constitution, the legal structure of government assumes a wider

variety of tasks and functions. In the case of a federal constitution, the tasks of government are

divided into two classes, those entrusted to the federal or central organs of government and those

entrusted to the various states, regions or provinces which make up the federation. There are

examples of countries such as Germany, Canada, Australia and USA where the constitutional

limits are enforceable in law (Bagehot 1993; Friedrich 1957).

In view of the above, this helps to enforce the separation of powers between the three arms of

government which is not normally the case in most developing countries especially in autocratic

and totalitarian regimes. Even the most powerful president of the USA does not enjoy so much

excessive power as the case is in most regimes in Africa, Asia and Latin America ( Sunday

2013;ZEC 2003). The concept of separation of powers is further strengthened by not

concentrating power in the hands of any one branch of government but through the principles of

autonomy and authority. The biggest challenge is evident in most developing countries because

their constitutions concentrate power in the hands of the executive branch of government without

an elaborate system of separation of powers namely the legislature, executive and judiciary.

Theories of constitutionalism

Accordingly Aristotle (1972; 1972) asserted as follows:

The classification of the “forms of government” was intended as a classification

of constitutions, whether good or bad. He argued that under good constitutions

such as monarchy, aristocracy systems, and the mixed kind systems to which

applied the same term politeia—one person, a few individuals, or in the case of

many rule in the interest of the whole polis.

10
Furthermore, Aristotle submitted that under the bad constitutions such as tyranny, oligarchy, and

democratic systems the tyrant, the rich oligarchs, or the poor dēmos, or people, rule in their own

interest alone. On one hand, for a constitutional state, power is controlled because it is shared or

distributed among the branches of government in such a way that they are each subjected to

reciprocal checks and forced to cooperate in the exercise of political power. On the other hand,

for non-constitutional systems thus ( totalitarianism or autocracy), although there may be

separate institutions such as legislatures, executives, and judiciaries, power is not shared but

rather concentrated in a single organ. Because the organ is not subjected to the checks of shared

power, the exercise of political power is uncontrolled or absolute. It is said that power corrupt

and absolute power corrupts.

Notably, Aristotle stated that the mixed constitution was the best arrangement of offices in the

polis. Such a politeia would contain monarchic, aristocratic, and democratic elements. It is also

acknowledged that citizens after learning to obey were to be given opportunities to participate in

the governance structure of any given country. This is a privileged position of the general

citizenry of any society; however, this was a fundamental right for the citizens because neither

non-citizens nor slaves would have been accorded that right according to Aristotle or his

contemporaries in the Greek city-states (Aristotle 1972; Aristotle 1972; Barker 1959; Crook 1991).

In a broader sense, Aristotle regarded some human beings as natural slaves, a point to which later

Roman philosophers, especially the Stoics and jurists, disagreed with him. Although slavery was

at least as widespread in Rome as well as in Greece, Roman law generally recognized a basic

equality among all human beings. This was contrary as the Stoics argued that all human beings

are endowed by nature with a spark of reason by means of which they can perceive a universal

11
natural law that governs the entire world and can bring their behaviour into natural harmony with

it. What matters most is the ability of the people of any nation to free participate in the

governance process to trigger off development in order to meet their immediate and future needs

(Aristotle 1972; Aristotle 1972; Barker 1959; Crook 1991).

In line of the above thought the Roman law thus added to Aristotelian notions of

constitutionalism the concepts of a generalized equality, a universal regularity, and a hierarchy of

types of laws and statutes. Apparently, Aristotle draw a distinction between the constitution

(politeia), the laws (nomoi), and which is more ephemeral that what corresponds to the

prevailing situation of today’s public policies (psēphismata). The latter might be based upon the

votes cast by the citizens in their assembly and might be subjected to frequent changes, but

nomoi, or laws, were meant to last longer. From this perspective, the Romans conceived of the

all-encompassing rational law of nature as the eternal framework to which constitutions, laws,

and policies should conform (constitution of the universe )(Aristotle 1972; Aristotle 1972;

Barker 1959; Crook 1991).

Marxist Theory of Law

Accordingly, the Marxist theory of law was propounded by two sociologists namely Marx and

Engels between 1818 to 1883.The two are the founding fathers of the school of thought of social

and political movement which began in the 19th century as a political philosophy in Eastern

Europe (Blaustein et al 1988;Dicey 1985 Lutze 1988). Marx observed that the state and law was

co-terminus with the understanding of society and social process. Marx’s originality of this

thought lied in the fact that he synthesized almost entire philosophical thought from Aristotle to

Hegel. Most importantly, the understanding of the society led Marx to pronounce that the desired

12
system would be a Communist Society based on rational planning, co-operative production and

equality of distribution and liberated from all forms of political and bureaucratic hierarchy. Marx

strongly contended the notion that the state and money as Bourgeois concept. Further, he argued

that a proletariat has a historical mission of emancipating the society as a whole. In this regard,

the law appeared to offer nothing than a function of economy without any independent existence.

There is so much discontent in most societies because the rich and powerful have abused the

judicial process of most countries by manipulation of the legal proceedings because of greed for

power and money (Blaustein et al 1988; Dicey 1985; Lutze 1988; Spiro 1959; Spiro 1967).

Truly, the advent of the Marxist conception of the state contended that the ends of human

existence once again became the objects of comprehensive government regulation. On one hand,

Marxism saw the state as a product of class warfare that would pass out of existence in the future

age of perfect freedom. On the other hand, Aristotle perceived human perfection to be possible

only within political society; Marx believed that the perfection of man would follow upon the

abolition of political society. Before the final disposal of the state, however, many Marxists

theorists supported that forceful use of governmental power was justified in order to hasten

mankind's progress toward the last stage of history (Blaustein et al 1988; Dicey 1985; Lutze

1988; Spiro 1959; Spiro 1967).

Constitutions and constitutional law

In simple terms, constitutionalism and constitutional law is about a body of rules, doctrines, and

practices that govern the operation of political communities. In modern times, the most important

political community has been the state. From the modernity era, constitutional law is the

offspring of nationalism as well as of the idea that the state must protect key fundamental rights

13
of the individual. Today, across the world, the number of states has multiplied, so have

constitutions and with them the body of constitutional law, though sometimes such law

originates from sources outside the state. The protection of individual civil and social rights has

become the concern of supranational institutions, particularly since the mid-20th century. 4

In most constitutions, there is a thin relationship between state power, law, democracy and the

preservation of liberal values of its citizenry. On one side, constitutionalism is all about socio-

economic doctrine that claims that political authority should be bound by institutions that restrict

the exercise of power. On the other side, constitutionalism is a set of principles, manners and

institutional arrangements that have traditionally served to limit government excessive powers.

For America, what is so special about their constitution is that the virtue of constitutionalism lies

not merely in reducing excessive powers of the government, but in effecting that reduction by the

advance imposition of rules which is not effective in most governments. A culture of respect for

the law by the state’s organs, and a system of courts can protect groups and individuals against

the abuse of power by the state organs (Blaustein et al 1988; Elster et al 1988).

The nature of constitutional law

Many constitutional experts are of considered view that a constitution is a body of rules

governing the affairs of an organized group. As the case may be, a parliament, a church

congregation, a social club, or a trade union can operate under the terms of a formal written

document labeled as a constitution. . In reality, not all of the rules of the organization are in the

constitution; many other rules (e.g., by-laws and customs) also exist. By default of the definition

4
In some constitutions, especially codified constitutions, also act as limiters of state power, by establishing lines which a state's
rulers cannot cross, such as fundamental rights. An example is USA.

14
the rules spelled out in the constitution are considered to be basic, in the sense that, unt il they are

modified according to an appropriate procedure, all other rules must conform to them. Implicit ly

speaking, one can argue that in the concept of a constitutionalism is the idea of a “higher law”

that takes precedence over all other laws (Richards 1989; Simons 1980).

Ideally, there has been a growing interest in the academic discourse that suggests that every political

community, and thus every state, has a constitution, at least insofar as it operates its important

institutions according to some fundamental body of laws and statutes. By this conception of the

term, the only conceivable alternative to a constitution is a condition of anarchy (Blaustein et al

1988; Elster et al 1988). Notwithstanding this, most constitutions take different forms and vary

considerably from one country to another. Although it cannot be disputed that constitutions may

be written or unwritten, codified or uncodified, and complex or simple, and they may provide for

vastly different patterns of governance. It ought to be emphasized that in a constitutional

monarchy, for example, the sovereign's powers are circumscribed by the constitution, whereas in

an absolute monarchy the sovereign has unqualified powers.5

Overall, this provides an argument that a political community's constitution articulates the principles

determining the institutions to which the task of governing is entrusted, along with their

respective powers. It is worth noting that in certain absolute monarchies, as in the ancient

kingdoms of East Asia, the Roman Empire, and France between the 16th and 18th centuries, all

sovereign powers were concentrated in one person, the king or emperor, who exercised them

directly or through subordinate agencies that acted according to his instructions (Aristotle 1972;

5 Constitutional Law defines powers of the various organs of the state. It comprises of various doctrines such as separation of
power, division of power etc. Thus, no individual body of a state can act as sovereign or command itself. Therefore, it is not
applicable to constitutional law.

15
McWhinney 1981; Pocock 1957). Evidence shows that in ancient republics, such as Athens and

Rome, the constitution provided, as do the constitutions of most modern states, a platform for

distribution of powers among distinct institutions. But whether it concentrated or dispersed state

powers, a constitution always contains at least the rules that define the structure and operations

of the government that runs the community. 6

In recent years, others have argued that a constitutional law should do more than merely to define

the authorities endowed with powers to command over three arms of government. It should also

delimit any such powers in order to secure against them certain fundamental rights of persons or

groups. The idea that there should be limits on the powers that the state may exercise is deeply

rooted in the philosophy of socio-political and economic landscape of the Western capitalist

states. From the religious ideology, before the advent of Christianity, many Greek philosophers

argued that, in order to have a just society, the laws and statutes should be actually enforced in a

community and should reflect the principles of a superior, ideal law, which was known as natural

law.

Similarly, conceptions were propagated in Rome by Cicero (106–43 BC) and by the Stoics on

the above assertion. Later the Church Fathers and the theologians of Scholasticism held this view

that laws and statutes are binding only if they do not conflict with the precepts of divine law (

Aristotle 1972; Blaustein et al 1988;Dicey 1985).It is therefore, argued that this consideration was

received to a certain extent as the fundamental rules of positive legal systems. In Europe during

the middle ages, for example, the authority of political rulers did not extend to religious matters,

6 Every constitution or every written constitution has unwritten parts and every unwritten constitution has written parts. These
unwritten parts ipso facto become a part of the written constitution and such parts are called as Meta Constitution (Aristotle 1972;
Blaustein et al 1988; Dicey 1985).

16
which were strictly reserved to the jurisdiction of the church. Their powers also were limited by

the rights granted to at least some classes of subjects (Aristotle 1972; Blaustein et al 1988).

However, the author seeks to argue the facts that disputes over the extent of such rights were not

infrequent and sometimes were settled through solemn legal “pacts” between the contenders,

such as Magna Carta (1215). Even in the case of absolute monarchs of Europe which did not

always exercise genuinely absolute power. For instance, the king of France between the 17th and

18th century was unable to alter the fundamental laws of the kingdom or to disestablish the

Roman Catholic Church (Blaustein et al 1971; Bogdanor 1988).

Against this background of existing legal limitations on the powers of governments, a decisive

turn in the history of Western constitutional law occurred when political philosophers developed

a theory of natural law based on the “inalienable rights” of the individual. The English

philosopher John Locke (1632–1704) was an early champion of this doctrine. Many others

followed Locke, and in the 18th century they articulated the banner of the Enlightenment on the

doctrine and practice of constitutionalism (Aristotle 1972; Aristotle 1972; Barker 1959; Crook

1991).

Accordingly many thinkers asserted that every human being is endowed with certain

fundamental civil rights and freedoms including the rights to worship according to one's

conscience, to express one's opinions in public, to acquire and possess property, and to be

protected against punishment on the basis of retroactive laws and unfair criminal procedures and

that governments cannot “take away” because they are not created by governments in the first

place. They further assumed that governments should be organized in such a way that affords

effective protection for civil and social individual rights and freedoms. Thus, it was thought that,

17
as a minimal prerequisite, governmental functions must be divided into legislative, executive,

and judicial. In real terms, executive action must comply with the laws and statutes as stated by

the legislature; and remedies, administered by an independent judiciary, must be available

against illegal executive action. Apparently, in most countries the judiciary is a rubberstamp of

the executive branch of government without any power to uphold the due process of the laws and

statutes. Sometimes, strong cartels are formed by those in the executive branch of the state and

controls the judiciary to an extent that they can decide who prosecute or not prosecute for

example.

One could argue that the doctrine of civil and social rights was a potent factor in the reshaping of

the constitutions of Western countries in the 17th, 18th, and 19th centuries (Aristotle 1972;

Aristotle 1972; Crook 1991; Spiro 1959). In the early stage of this process, the key issue was the

creation of the English Bill of Rights (1689), a product of England's Glorious Revolution

(Aristotle 1972; Aristotle 1972; Crook 1991). All these principles concerning the division of

governmental functions and their appropriate relations were incorporated into the constitutional

law of England and other Western countries. England also later changed some of its laws so as to

give more-adequate legal force to the newly pronounced individual civil and social freedoms. 7

It can be, therefore be stressed that in the United States the doctrine of natural rights was even

more successful. When the American colonies became independent states in 1776, they faced the

problem of giving themselves a fresh start of political organization (Billias 1990; Bowie et al

1954). They seized the opportunity to spell out in legal documents, which could be amended

7 The basic purpose of a written constitution is to limit the powers of the government. In the American Constitution, the
President is elected by the people for a period of four years and during that period; he is not responsible to anybody. But this does
not mean that he is above the constitution. His powers are subject to the limits that have been laid down by the constitution. It is
said that the American System of Government is free government but under law (Billias 1990; Bowie et al 1954).

18
only through a special procedure, the main principles for distributing governmental functions

among distinct state agencies and for protecting the rights of the individual, as what was

provided for in the doctrine of natural rights.

Moreover, the federal Constitution drafted in 1787 at a Constitutional Convention in

Philadelphia replaced the failing Articles of Confederation and its subsequent Bill of Rights

which was ratified 1791 did the same at the national level( Billias 1990; Bowie et al 1954). By

formally conferring through these devices a higher status on laws and statutes that defined the

organization of government and limits of its legislative and executive powers U.S.

constitutionalism displayed the essential nature of all constitutional law. In other words, the fact

was that it is “basic” with respect to all other laws of the legal system. This feature made it easy

to establish institutional controls over the conformity of legislation with the group of rules

considered, within the system, to be of supreme importance. 8

While in some quarters it is also debated that the opposite of this argument could be true the

American ideas were the basic rules that guided the operations of government in an orderly and

comprehensive manner. From the end of the 18th century, scores of countries in Europe and

elsewhere followed the example of the United States; today nearly all states have constitutional

documents describing the fundamental organs of the state, the ways they should operate, and,

usually, the rights they must respect and even sometimes the goals they ought to pursue. Today,

it appears very difficult to differentiate whether most constitutions of developing countries,

however, have been inspired by the people or are as a result of individualistic ideals of the

8 Constitutionalism means the study of the deepest layers of the constitution. This includes questions like what are the
fundamental pillars on which the constitution is based is to be studied. The purpose of such a study is to find out the commonality
between various democratic constitutions so that society can find out certain fundamental layers that are common in all the
constitutions (Billias 1990; Bowie et al 1954).

19
political leadership that have permeated modern constitutional governments (Billias 1990; Bowie

et al 1954).

Many scholars such as Billias (1990) expressed different thoughts as to why this was so. There is

increasingly dissatisfaction by most people in most developing constitutional governments

because political leadership does not respect the doctrines and practices of constitutionalism and

constitutional law. It is also claimed that the constitutions of the former Soviet Union and other

communist countries subordinated individual freedoms to the goal of achieving a classless

society. Notwithstanding the great differences between modern constitutions, however, they are

similar at least in one respect: they are meant to express the core of the constitutional law

governing their respective countries Normative constitutions were so predominated in the United

States, Australia, Canada, Japan, and the countries of western Europe, while nominal

constitutions were common in countries ruled by a one-person or a one-party dictatorship or by a

military junta.9

9 Constitutions are supposed to last for a long period of time and they are also supposed to govern a country on all socio-

economic and political matters. From the concept of ‘generality’ the constitution in the real terms can be stated as a ‘Darwinian

Structure’. Darwinian Structure means that a Constitution consists of interconnected sub-theories and theories at different levels

of abstraction and interpreted in accordance with statutes. It is the duty of the judiciary to interpret the constitution which makes

it to be called Darwinian (Beer 1979; Ballias 1990; Blaustein 1986; Wheare 1951).

20
Doctrine of constitutional government

In the case of Great Britain ,it is accepted that from the constitutional theory Parliament (the

House of Commons and the House of Lords acting with the assent of the monarch) can do

anything it wants to, including abolish itself. The interesting aspect of British government is that,

despite the absence of restraints such as judicial review, acts that would be considered

unconstitutional in the presence of a written constitution are attempted very rarely, certainly less

often than in the United States (Beer 1979; Ballias 1990; Blaustein 1986; Wheare 1951).

Conversely, there are those who believe that the English constitution and the English common

law grew up together, very gradually, more as the result of the accretion of custom than through

deliberate, rational legislation by some “sovereign” lawgiver. It is logical to state that Parliament

grew out of the Curia Regis, the King's Council, in which the monarch originally consulted with

the great magnates of the realm and later with commoners who represented the boroughs and the

shires(Bagehot 1973; Livingston 1974; Wormuth 1949).One possibility is to argue that

Parliament was, and is, a place in which to debate specific issues of disagreement between,

initially, the crown, on the one hand, and the Lords and Commons, on the other. In the final

analysis was that the conflicts were settled in Parliament so that its original main function was

that of a court, it was in fact known as “the High Court of Parliament” in the late 16th century

(Bagehot 1973; Livingston 1974; Wormuth 1949).

It should be emphasized at this point that the locus of power in the English constitution shifted

gradually as a result of changes in the groups whose consent the government required in order to

be effective. In feudal times, the consent of the great landowning noblemen was needed. Later,

the cooperation of commoners willing to grant revenue to the crown—that is, to pay taxes—was

21
sought. Quite interesting to note that the crown itself was increasingly institutionalized, and the

distinction was drawn ever more clearly between the private and public capacities of the king.

Likewise by the 18th century, effective government passed more and more into the hands of the

king's first minister and his cabinet, all of them members of one of the two houses of Parliament.

Before this development, the king's ministers depended upon their royal master's confidence to

continue in office (Bagehot 1973; Livingston 1974; Wormuth 1949).

Henceforth they depended upon the confidence of the House of Lords and especially the House

of Commons, which had to vote the money without which the king's government could not be

carried on. In this way the parlay that was originally between the monarch and the houses of

Parliament was now struck between the ministry and its supporters, on the one hand, and

opposing members of Parliament, on the other hand. From a strictly constitutional point of view

Parliamentary factions were slowly consolidated into parliamentary parties, and these parties

reached out for support into the population at large by means of the franchise, which was

repeatedly enlarged in the course of the 19th century and eventually extended to women and then

to 18-year-olds in the 20th( Bagehot 1973;Livingston 1974;Wormuth 1949).

Again, studies shows that when a prime minister loses a vote of confidence in the House of

Commons, he can either resign to let the leader of the Opposition form a new government or

required the monarch to dissolve Parliament and call for fresh elections. As a result of the strong

party discipline that developed in the 20th century, prime ministers generally could not lose

votes of confidence any more, and they call for fresh elections at the politically most favourable

moment. According to an act of Parliament, elections must be held at least every five years but

another act of Parliament can change or suspend this apparently “constitutional” provision, as

22
was done during World War II, when the life of the incumbent House of Commons was extended

until the defeat of Germany (Bagehot 1973; Billias 1990; Wormuth 1949).

Similarly, relations between, and the relative powers of, the House of Lords and the House of

Commons have been repeatedly redefined to the disadvantage of the House of Lords by acts of

Parliament, to such an extent that the Lords retain only a weak suspensory veto. Probably, this is

why all such fundamental constitutional changes have occurred either informally and without

any kind of legislation at all or as a result of the same legislative procedures employed to pass

any other ordinary circumstantial bill.

From the view point of the U.S. Constitution which is not only replicate with phrases taken from

the British constitutional vocabulary, but in several respects, it also represents a codification of

its authors' understanding of the English constitution, to which they added ingenious federalist

inventions and the formal amending procedure itself( Bagehot 1973;Billias 1990;Wormuth

1949). Despite the availability of this procedure, however, many if not most of the fundamental

changes in American constitutional practice could not be changed by formal amendments.

Historically, the era of the Constitutionalism still does not mention political parties or the

president's cabinet. On the contrary, was the Constitution changed in order to bring about or to

sanction the fundamentally altered relations between the executive and the Congress, between

the Senate and the House, and between the judiciary, the legislature, and the executive (Bagehot

1973; Billias 1990; Wormuth 1949).

23
For some advocates argued that the presence of a constitutional document, however, made

American politics more consciously “constitutionalist,” at least in the sense that politicians in the

United States take more frequent recourse than their British counterparts to legalistic

argumentation and to actual constitutional litigation(Billias 1990; Dicey 1985; Friedrich 1968;

Richards 1989). In the light of the argument the United States, moreover, is denied the kind of

flexibility illustrated by the postponement of British parliamentary elections during World War II

since the Constitution explicitly provides the dates for congressional and presidential elections.

Generally, one of the remarkable facts of American constitutional history is that the

constitutional timetable for elections has always been observed, even during external war and the

Civil War of the 19th century (Billias 1990; Dicey 1985; Friedrich 1968; Richards 1989).

Initially in Europe, countries such as France, Germany, and Italy were greatly influenced by

continental concepts of constitutionalism, had no record of unbroken constitutional fidelity

similar to that found in Britain and the U.S. Because of the highly substantive and ideological

content of most French constitutions at the time, the best way to change them was to replace

them altogether with a new, ideologically different document. At this stage, constitution of the

Third Republic (established in 1870) was exceptional in this respect, since it consisted of very

short, highly procedural organic laws, which served France well for 70 years, until the German

invasion of 1940( Blaustein et al 1986; Blaustein et al 1971).

Admittedly, the main political problem attributed to the constitution of the Third Republic was

the instability of cabinets. The negative majorities that voted “no confidence” in a cabinet

meeting usually could not stay together for the positive purpose of confirming a new cabinet.

The constitution of the Fourth Republic (1946–58) made the overthrow of governments by the

24
National Assembly more difficult. In fact, however, the life of the average cabinet in the Fourth

Republic was even shorter than in the Third, and French government became virtually paralyzed

when it had to deal with the problems raised by the Algerian independence movement (Blaustein

et al 1988; Dicey 1985; Lutze 1988; Pocock 1957).

Arising from the foregoing, in order to avert a military takeover, such as General de Gaulle was

given wide discretion in 1958 in the formulation of a new constitution, which was

overwhelmingly accepted in a referendum. The constitution of the Fifth French Republic gives

the president of the Republic the power to dissolve Parliament and the means of circumventing a

hostile National Assembly through the referendum. Since 1958, French cabinets have been very

stable indeed, and the constitution proved resilient during the “revolution of 1968(Blaustein et al

1988; Dicey 1985; Lutze 1988; Pocock 1957).

Given the above background, for Germany, which was unified as a national state only in 1871,

established its first democratic constitution in 1919, after its defeat in World War I. Although

some of the greatest German jurists and social scientists of the time participated in writing the

Weimar Constitution, it has been adjudged a failure. As it can be noted that political parties

became highly fragmented, a phenomenon that was explained partly by an extremely democratic

electoral law (not a part of the constitution) providing for proportional representation (Richards

1989; Simons 1980).

One of the major highlights was that some of the parties of the right, such as Hitler's Nazis, and

of the left, such as the Communists, were opposed to the constitutional order and used violence

in their efforts to overthrow the Republic. To deal with these threats, the President used his

constitutional emergency powers under which he could suspend civil rights in member states of

25
the federal system(Richards 1989; Simons 1980).Several chancellors (the German equivalent of

a prime minister) stayed in office after the President had dissolved a Parliament in which the

chancellor lacked a supporting majority. They continued to govern with the help of presidential

emergency powers and by legislating on the basis of powers previously delegated to them by

Parliament (Richards 1989; Simons 1980).

When a new constitution was drafted for the Western zones of occupation after World War II,

every effort was made to correct those constitutional errors to which the failure of the Weimar

Republic was attributed. Under the Basic Law of the Federal Republic of Germany, Parliament

cannot delegate its legislative function to the chancellor, and civil rights cannot be suspended

without continuous parliamentary surveillance. The president has been turned into a figurehead

on the model of the French presidents of the Third and Fourth Republics, and Parliament cannot

overthrow a chancellor and his cabinet unless it first elects a successor with the vote of a

majority of its members (Richards 1989; Simons 1980). Negative majorities cannot paralyze

government unless they can agree on alternative policies and personnel. The extreme form of

proportional representation used before Hitler came to power was replaced by a mixed electoral

system under which half the members of the Bundestag (the lower house of the legislature) are

elected from party lists by proportional representation, while the other half are elected in single

member constituencies. In order to benefit from proportional representation, a party must obtain

at least 5 percent of the votes cast. As a result, the number of parties steadily contracted during

the first two decades of the Federal Republic and extremist parties were kept out of Parliament.

Cabinets have been very stable, and the provision for the “constructive vote of no confidence”

was invoked for the first time only in 1982 (Richards 1989; Simons 1980).

26
The ideal position was that the experience of constitutional government in continental Europe

exerted great influence on the newly independent former colonies of Europe in the Middle East,

Asia, and Africa. In the early years of its independence Spain and most of Latin-American

countries adopted constitutions similar to that of the United States. But since they lacked the

background that produced the American Constitution, including English common law, most of

their efforts at constitutional engineering were unsuccessful (Bagehot 1993; Blaustein et al 1986;

Richards 1989; Simons 1980)

In most of Asia and Africa many former colonies of Great Britain, such as India and Zambia,

have been comparatively more successful in the operation of constitutional government than

former colonies of the continental European countries (e.g., Indonesia and Congo DR). The

British usually left a modified and simplified version of their own constitution upon granting

independence to their former subjects, some of whom they had previously trained in the

complicated operating procedures of the British constitution (Bagehot 1993; Blaustein et al

1986; Richards 1989; Simons 1980).British parliamentary procedure proved sufficiently

adaptable to remain in use for some time after the departure of the British themselves. France's

former colonies in Africa, because they achieved independence after the founding of the Fifth

Republic, modeled their new constitutions upon General de Gaulle's, partly because this

enhanced the power of the leaders under whom independence had been achieved (Blaustein et al

1986; Richards 1989; Simons 1980).

27
Religious Ideological Influence of the church

Typically, Christianity has endowed a universal constitution with a clearly monarchical cast. The

Christian God, it came to be argued, is the sole ruler of the universe, and his laws are to be

obeyed. Christians are under an obligation to try to constitute their earthly cities on the model of

the City of God. Both the church and the secular authorities with whom the church came into

conflict in the course of the middle ages needed clearly defined arrangements of offices,

functions, and jurisdictions( Barker 1980;Blaustein et al 1971).

Many advocates argued that the medieval constitutions, whether of church or state, were considered

legitimate because they were believed to be ordained of God or tradition or both. Confirmation

by officers of the Christian Church was regarded as a prerequisite of the legitimacy of secular

rulers. Coronation ceremonies were incomplete without a bishop's participation. Natural law

refers to the Principles of Natural right and wrong and the Principle of Natural Justice. Here, the

use of the term ‘justice’ in the widest sense includes all forms of rightful action. Natural Law is

also called Divine Law or Law of Reason or the Universal Law and Eternal Law. This law is a

Command of the God imposed on Men (Aristotle 1972; Barker 1980; Blaustein et al 1971).

One of the notable views that Holy Roman emperor travelled to Rome in order to receive his

crown from the pope. Oaths, including the coronation oaths of rulers, could be sworn only in the

presence of the clergy because oaths constituted promises to God and invoked divine punishment

for violations. Not surprisingly, even in an imposition of a new constitutional order, novelty

could always be legitimized by reference to an alleged return to a more or less fictitious ancient

constitution Aristotle 1972; Barker 1980; Blaustein et al 1971). It was only in Italy during the

Renaissance and in England after the Reformation that the “great modern fallacy” (as the Swiss

28
historian Jacob Burckhardt called it) was established; according to which citizens could

rationally and deliberately adopt a new constitution to meet their needs.10

Among many other things, there was a shared “ideology” that gave fellow citizens a sense of

communal belonging and recognized interlocking values, interests, and beliefs. Ideology, in this

view, was cited as the product of many different forces. It was associated with ancient customs,

religion, severe dislocations or the sort of common need that had led to the formation of many

nation-states, and sometimes with the fear of a common enemy. The religious ideological

thought was that people called patriotism as typical product of several forces.

Most Governments neglected at their peril the task of strengthening the religious ideological

thinking of their citizens to the regime. In the case of civic education which was counted among

the essential functions of the state, for it was primarily through systems of education that citizens

learnt their duties. Ideally, a number of sociological studies showed how the process of political

socialization can transform people into citizens for example from kindergarten and grade school

(Aristotle 1972; Barker 1980; Blaustein et al 1971).Even more than this, education is the

instrument by which governments further the cohesion of their societies and build the

fundamental kinds of consensus that support their authority. It was not surprising, therefore, that

national systems of education were often linked to central elements of the regimes.

10 Societies are generally agreed that the law cannot be static in order to remain relevant. Law has to grow with the development
of the society. In the same manner, the scope of law also cannot be kept static. The result is that the definition of law is ever
changing with the change in society. What is considered satisfactory today might be considered a narrow definition of law
tomorrow. There is a greater need to keep improving whatever the case may be (Aristotle 1972; Barker 1980; Blaustein et al
1971).

29
In France public education was traditionally mixed with the teachings of the Roman Catholic

Church; in Great Britain a private system of education supported the class divisions of society;

and in the United States a primarily secular form of public education traditionally used

constitutional documents as the starting point of children's training in patriotism (Aristotle 1972;

Barker 1980; Blaustein et al 1971).

Practice of social contract

In view of social contract, it can be stated that the theoretical foundations of modern

constitutionalism were laid down in the great works on the social contract, especially

contributions from the English philosophers such as Thomas Hobbes and John Locke in the 17th

century and the French philosopher Jean-Jacques Rousseau in the 18 th century. The main idea

was to carry it to higher level of abstraction, the familiar theory of social contract (Aristotle

1972; Barker 1980; Blaustein et al 1971). These can regulate all agreements and they specify co-

operation that can be entered into and forms of government that can be established. Thus, justice

is termed as fairness. He conceived that basic structure of society distributes primary goods.

They are liberty, opportunity, income and wealth, health and vigor, intelligence and imagination.

It is well accepted that society is dynamic and not static in nature. Infact, laws made for the

people are also not static in nature.

In any case, the purpose and function of law also cannot remain static as society keeps evolving

over time. There is no unanimity among theorists as to purpose and function of law. Even when

people talk about an ideal legal system, it is not static but keeps on changing according to the

changing needs of the people. Therefore, law must adjust to the needs of the people and it cannot

isolate itself from them. However, in practice, law is not usually changed to adjust itself to the

30
needs of the people. In reality, the lack of flexibility has often led to hardship as though the law

was made to cause pain in the people it is intended to serve.

It is widely suggested that as a result of the Reformation the basis of divinely sanctioned

contractual relations was broken up. The Holy Roman Empire was torn apart by the wars of the

Reformation. Henry VIII made the Church of England independent of Rome. In similar

circumstances, it became necessary to search for a new basis of order and stability, loyalty and

obedience. In their search, political theorists—and especially the Protestants among them—

turned to the old biblical concept of a covenant or contract, such as the one between God and

Abraham and the Israelites of the Old Testament Aristotle 1972; Barker 1980; Blaustein et al

1971).

Medieval constitutionalism developed as was the case of the Greek and Roman

constitutionalism, from the struggle of an aristocracy seeking to restrain a monarchical ruler who

threatened to become a tyrant. In this struggle, constitutionalism became associated with the

church, which in some places and at certain times even played a leading role. The share of the

bishops in the fighting preceding the issuance of Magna Charta certainly was considerable

Aristotle 1972; Barker 1980; Blaustein et al 1971).

King John's attempted to deal with this ecclesiastical opposition by enlisting the support of the

pope miscarried; he misunderstood the position of the church. Vitally interested in the restraining

of governments, and anxious to retain control over certain fields of law, such as family law, the

church developed the doctrine of natural law as it had come down from the Stoics, more

especially Cicero, and had been incorporated in the imperial code, the Corpus Juris Civilis

Aristotle 1972; Barker 1980; Blaustein et al 1971).

31
In the context of the Roman law, a constitution was a law established by the emperor; in the

medieval world, such collective bodies as the “king in parliament” were seen as the successors to

the emperor. For example, the Golden Bull, which regulated the election of the Holy Roman

emperor, was a constitution in this classical sense. Particularly, the archbishops of Cologne,

Mainz, and Trier participated and were made electors under this “constitutional” charter. For

many medieval thinkers, jurists, and philosophers, no distinct constitutional problem existed

apart from the general proposition that all government should be according to and under the law

Aristotle 1972; Barker 1980; Blaustein et al 1971).

By and large, it is understood that the secular theorists of the social contract almost reversed the

process of choice. Instead of God choosing his people, a people through its representatives was

now looked upon as choosing its governors, or its mode of governance, under God, by means of

a social contract or constitution. According to modern theories of the social contract, the political

unit is nevertheless established as in the biblical model by means of a promise or promises.

It is suggested that the Thomas Hobbes's state, or “Leviathan,” comes into being when its

individual members renounce their powers to execute the laws of nature, each for himself, and

promise to turn these powers over to the sovereign—which is created as a result of this act—and

to obey thenceforth the laws made by this sovereign. These laws enjoy authority because

individual members of society are in effect their co-authors. According to Locke, individuals

promise to agree to accept the judgments of a common judge (the legislature) when they accede

to the compact that establishes civil society. After this (in one interpretation of Locke's Second

Treatise on Civil Government), another set of promises is made—between the members of the

32
civil society, on the one hand, and the government, on the other (Aristotle 1972; Barker 1980;

Blaustein et al 1971).

The argument so far shows that the government promises to execute its trust faithfully, leaving to

the people the right to rebel in case the government breaks the terms of the contract, or, in other

words, violates the constitution. It is imperative to state that subsequent generations accept the

terms of the compact by accepting the inheritance of private property that is created and

protected by the compact. Anyone who rejects the constitution must leave the territory of the

political unit and go in vacuis locis, or “empty places”—America, in Locke's time. In his Letters

on Toleration, Locke characteristically excluded atheists from religious toleration because they

could be expected either not to take the original contractual oath or not to be bound by the divine

sanctions invoked for its violation. 11

Hobbes on sovereignty

It is evident that a theory of sovereignty, Hobbes’s main contribution to constitutionalism lies in

his radical rationalism. Individuals, according to Hobbes, come together out of the state of

nature, which is a state of disorder and war; because their reason tells them that they can best

ensure their self-preservation by giving all power to a sovereign (Aristotle 1972; Barker 1980;

Blaustein et al 1971). The sovereign may consist of a single person, an assembly, or the whole

11
For Rousseau, too, the willingness to subject one to the “general will” to which only the popular sovereign can give expression

is the essential ingredient of the social contract. In taking this position, Rousseau may have been influenced by the experience of

his native Geneva. For example, the Swiss Confederation is still referred to officially, in German, as an Eidgenossenschaft, a term

best translated as “fellowship of the oath (Aristotle 1972; Barker 1980; Blaustein et al 1971).

33
body of citizens; but regardless of its form, all the powers of sovereignty have to be combined

and concentrated in it. Hobbes held that any division of these powers destroyed the sovereign

and thereby returned the members of the commonwealth to the state of nature, in which the

condition of man is “. . . solitary, poorer, nasty, brutish, and short.” 12

Many experts such as Locke strongly supported the assertions that attempted to provide firm

assurance of the individual's natural rights, partly by assigning separate though coordinated

powers to the monarch and Parliament and partly by reserving the right of revolution against a

government that had become unconstitutionally oppressive. Most importantly, evidence shows

that Locke did not use the word sovereignty. In this as in other respects, he remained within the

English constitutional tradition, which had eschewed the concentration of all powers in a single

organ of government. The closest that English constitutionalists came to identifying the centre of

sovereign power was in the phrase, used frequently from the 16th century onward, the king (or

queen) in Parliament (Aristotle 1972; Barker 1980; Blaustein et al 1971).

Rousseau and the general will

Theoretically speaking, on one hand Hobbes created his unitary sovereign through the mechanism

of individual and unilateral promises and on the other hand Locke prevented excessive

concentration of power by requiring the cooperation of different organs of government for the

accomplishment of different purposes. Equally, Rousseau merged all individual citizens into an

all-powerful sovereign whose main purpose was the expression of the general will.
12
Hobbes therefore preferred the singular sovereign since he was less likely than an assembly or than the whole body of citizens
to become internally or functionally divided. The individual should retain only his natural rights, which he cannot surrender into
the common pool of sovereign powers. These rights include the right against self-incrimination, the right to purchase a substitute
for compulsory military service, and the right to act freely in instances in which the laws are silent (Aristotle 1972; Barker 1980;
Blaustein et al 1971).

34
By definition, the general will can never be wrong; for when something contrary to the general

interest is expressed, it is defined as the mere “will of all” and cannot have emanated from the

sovereign. In order to guarantee the legitimacy of government and laws, Rousseau would have

enforced universal participation in order to “force men to be free,” as he paradoxically phrased it.

In common with Hobbes and Locke, Rousseau required the assent of all to the original social

contract. He required smaller majorities for the adoption of laws of lesser importance than the

constitution itself. 13

His main argument was to provide for legitimacy through universal participation in legislation,

whereas Locke and Hobbes were more concerned to provide constitutional stability through

consent. As a result, Rousseau's thought appears to be more democratic than that of his English

predecessors. He was accused of lying the philosophical foundations of “totalitarian democracy,”

for the state he describes in The Social Contract would be subject, at the dictates of its universal

and unanimous sovereign, to sudden changes, or even transformations, of its constitution. 14

In the political thought of Hobbes, Locke, and Rousseau may be found theoretical consideration

of the practical issues that were to confront the authors of the American and French constitutions.

The influence of theories of the social contract, especially as they relate to the issues of natural

rights and the proper functions of government, pervades the constitution making of the

revolutionary era that began with the American Revolution and is indeed enshrined in the great
13
It is not necessary for the law to exist if the sovereign exists. There were societies prior to existence of sovereign and there
were rules that were in prevalence. At that point of time, there was no political superior. Law had its origin in custom, religion
and public opinion. All these so called ‘laws’ were later enforced by the political superior (Aristotle 1972; Barker 1980; Blaustein
et al 1971).
14
Law is the total sum of the rules set by men as political superior or sovereign to men as politically subject. In summary, law is
the command of sovereign. However, it can be stated that law as the body of principles recognized and applied by the state in the
administration of law and order for a just society (Aristotle 1972; Barker 1980; Blaustein et al 1971).

35
political manifestos of the time, the American Declaration of Independence and Bill of Rights,

and the French Declaration of the rights of men and the citizen (Aristotle 1972; Barker 1980;

Blaustein et al 1971)..

Mostly, the constitutional experience of these two countries, and, of course, of England, had

great influence on liberal thought in Europe and other parts of the world during the 19th century

and found expression in the constitutions that were demanded of the European monarchies. The

extent to which the ideal of constitutional democracy has become entwined with the practice of

constitutional government will be apparent from the examination in the following section of the

main features of constitutional government

Features of constitutional government

Virtually, there is a general consensus that all contemporary governments have constitutions, but

possession and publication of a constitution does not make a government constitutional.

Constitutional government in fact comprises elements of fairness and justice. However, there are

divergent views on the application of the doctrines and practices of constitutionalism and

constitutional law in most developing countries. Consequently, so often constitutions are

manipulated to suit those in the governing seat and sometimes constitutional provisions does

affect them even more after they vacant office. There is a growing tendency that features of most

constitutions on the continent of Africa are normally driven by partisan ideology. Similarly, this

outcome of the negative effect of partisan ideology is the weakening of vital components of

democratic governance and state power.

36
Procedural stability

In contemporary times, certain fundamental procedures must not be subject to frequent or arbitrary

change. Citizens must know the basic rules according to which politics are conducted. Stable

procedures of government provide citizens with adequate knowledge of the probable

consequences of their actions. By contrast, under many non constitutional regimes, such as

Hitler's in Germany and Stalin's in the Soviet Union, individuals, including high government

officials, never knew from one day to the next whether the whim of the dictator's will would not

turn today's hero into tomorrow's public enemy(Aristotle 1972; Barker 1980; Blaustein et al

1971).

Accountability

It must be underscored that under constitutional government those who govern are regularly held

accountable to at least a portion of the governed. In a constitutional democracy, this

accountability is owed to the electorate by all persons in government. Accountability can be

enforced through a great variety of regular procedures, including elections, systems of promotion

and discipline, fiscal accounting, recall, and referendum. In constitutional democracies, the

accountability of government officials to the citizenry makes possible the citizens' responsibility

for the acts of government (Barker 1980; Blaustein et al 1971).

The most obvious example of this two-directional flow of responsibility and accountability is the

electoral process. A member of the legislature or the head of government is elected by adult

citizens and is thereby invested with authority and power in order that he may try to achieve

those goals to which he committed himself in his program. At the end of his term of office, the

37
electorate has the opportunity to judge his performance and to reelect him or dismiss him from

office. The official has thus rendered his account and has been held accountable (Barker 1980;

Blaustein et al 1971).

Representation

Some critics argue that those in office must conduct themselves as the representatives of their

constituents. To represent means to be present on behalf of someone else who is absent.

Elections, of course, are not the only means of securing representation or of ensuring the

representativeness of a government. Hereditary medieval kings considered themselves, and were

generally considered by their subjects, to be representatives of their societies. Of the social

contract theorists only Rousseau denied the feasibility of representation for purposes of

legislation (Bagehot 1993; Blaustein et al 1986; Richards 1989; Simons 1980).The elected status

of officeholders is sometimes considered no guarantee that they will be “existentially

representative” of their constituents, unless they share with the latter certain other vital

characteristics such as race, religion, sex, or age. The problems of representation are in fact more

closely related to democratic than to constitutionalist criteria of government: a regime that would

be considered quite unrepresentative by modern standards could still be regarded as

constitutional so long as it provided procedural stability and the accountability of officeholders

to some but not all of the governed and so long as the governors were representative of the best

or the most important elements in the body politics(Bagehot 1993; Blaustein et al 1986; Richards

1989; Simons 1980).

38
Division of power

Other devoted writers such as Dicey (1985) argued that constitutional government requires a

division of power among several organs. Pre-constitutionalist governments, such as the absolute

monarchies of Europe in the 18th century, frequently concentrated all power in the hands of a

single person. The same was true in dictatorships such as Hitler's in Germany. Constitutionalism,

on the other hand, by dividing power—between, for example, local and central government and

between the legislature, executive, and judiciary—ensures the presence of restraints and “checks

and balances” in the political system. Citizens are thus able to influence policy by resort to any

of several branches of government (Bagehot 1993; Blaustein et al 1986).

Openness and disclosure

It is interesting to note that democracy rests upon popular participation in government, and the

doctrine and practice of constitutionalism upon disclosure of and openness about the affairs of

government. In this sense, constitutionalism is a prerequisite of successful democracy, since the

people cannot participate rationally in government unless they are adequately informed of its

workings. Originally, because they were concerned with secrets of state, bureaucracies

surrounded their activities with a veil of secrecy (Bagehot 1993; Blaustein et al 1986; Simons

1980). It can be contended that the ruler himself always retained full access to administrative

secrets and often to the private affairs of his subjects, into which bureaucrats such as tax

collectors and the police could legally pry. In practice, when both administrators and rulers were

subjected to constitutional restraints, it became necessary that they disclose the content of their

official activities to the public to which they owed accountability. This explains the provision

contained in most constitutions obliging the legislature to publish a record of its debates.

39
Constitutional change

Generally, constitution making process of any democratic society requires a representative

constituent assembly in which the constitution is debated and eventually adopted. It is generally

agreed by most experts that the work of an assembly is to reinforce and protect the contents of

the constitution through a popular referendum which is often supported by civil society groups

and not by those with the power to govern. Rejections have been few, the most striking instance

being that of the first postwar constitution, submitted to the French electorate in April 1946

(Blaustein et al 1988; Elster et al 1988). In the case of federal systems, there is also likely to be

some procedure for securing the assent of a majority of the member units, through either

legislative action or referenda. As constitutional experience has evolved overtime, the role of

“experts” has become more and more important in most countries. Indeed, preparatory

commissions have often been established to draft a constitutional proposal, as was done in the

case of Puerto Rico in 1952 (Blaustein et al 1988; Elster et al 1988).But some of constitution

commissions are cited to be highly compromised by the state functionaries to draft a friendly

constitution in support of those in the confines of power (Blaustein et al 1988; Elster et al 1988).

It is often argued that there are different schools of thought on how to structure a good

constitution-making process and no country is an exceptional. In some countries, constitutions

are drafted by mainly from the perspectives of the party ideology in power or drafted on the basis

of the ideals of those presiding over state power at the time of constitution making process,

however, the argument is whether there is high degree of public participation at all different

stages in the constitution-making process remains a matter of serious concerns (ZEC 2003, p.4).

40
Although there are various approaches to participatory constitution-making, evidence has shown

that many developing nations lack a broad public participation in constitutional reforms to the

extent that the constitution does not receive support from the majority at all. It is true that there is

no single constitution that can be generally be accepted by the majority. Moreover, public

participation should entail direct involvement of citizens in constitution-making, giving people a

chance to influence the outcome of the process. But this has not been the case in certain countries

because the state often receives what the people want but not all the recommendations are taken

on board by those drafting the constitution often known as a committee of experts.

In their pastoral letter on the 2003 Constitutional Review Process, the Catholic Bishops in

Zambia argued that:

Constitution making process requires that the method used to adopt and enact the

constitution, was above suspicion of manipulation by the party in government. That’s

why a road map should show the various stages of the constitution making process in

order to achieve people’s driven constitution.

From the above argument by the Catholics Bishops, it can be contested that the mode of adoption

and enacting a constitution is a fundamental aspect to a credible constitution making process.

Experience has show that the constitution making process in Zambia from the Chona

Commission in 1968 to the Silungwe Commission in 2011 has been a subject of manipulation by

those in power to safeguard their stay in office. Obviously, a good constitution is premise for

economic development as it entails the rule of law. A fragile constitution is a recipe for bad

governance in most of the developing nations as leaders find it easy to manipulate the system for

political expediency.

41
In reality, the doctrine and practice of constitutionalism in Zambia has been a source for concern

after 50 years of political independence. It can be illustrated that the two landmark constitution

making process was the 1968 by the Chona Commission which led Zambia to become a one

party participatory democratic state and United National Independence Party (UNIP) became the

sole political party. It is not debatable that during the one party state system divergent views

were not well accepted by those in the corridors of power and party hierarchy. The other one was

the Mvungu Commission which was meant to promulgate a multi-party state following a return

to democracy in 1991. However, the former President Dr Kenneth David Kaunda signed an

amendment to the constitution to allow a return to plural politics in Zambia. This was really a

recommended stance taken by President Kaunda instead of a referendum his government opted

for an outright amendment of the constitution. In the recent past, the Constitution (Amendment)

No. 2 of 2016 though so much criticism arose, a new constitution provides a good platform for

the doctrine and practice of constitutionalism within the context of Zambia.

Zambia has had five constitutional reviews from 1968 to 2016. The Wila D. Mung’omba

Constitution Review Commission (2003) was the fourth Commission. Constitutional changes

followed upon recommendations from the Chona (1968), the Mvunga (1990) and the

Mwanakatwe (1993) Commissions, resulting in the 1973, 1991 and 1996 Constitutions.

Unfortunately, each Constitution had largely been rejected by most Zambians because of lacking

constitutional legitimacy. This is primarily because the Inquiries Act (that established a

“Commission of Inquiry”) gave government the powers to reject or accept people’s

recommendations and makes any modifications that government desired through a document

commonly referred to as the government “white paper” (GRZ 1991; GRZ 2005).

42
In the recent past, was the Silungwe Commission appointed by Late Mr. Micheal Chilufya Sata

President of the Republic of Zambia on the 16th November, 2011.This is what has now

culminated in to the Constitution (Amendment) Act No. 2 of 2016. For the first time in the

history of Zambia, the new constitution has now provided very progressive clauses such as the

Presidential running mate in Article 110(1) which states that “there shall be a Vice –President for

the Republic who shall be the running mate to a presidential candidate in a presidential election”.

Zambia between a period of 2008 and 2015 had to hold two Presidential by elections in 2008 and

2015 which were very costly as a result of death of a sitting Head of State.

Probably, in certain countries written constitutions are not only likely to give rise to greater

problems of interpretation than unwritten ones, but they are also harder to change. A first

distinction is made that unwritten constitutions tend to change gradually, continually, and often

imperceptibly, in response to changing needs. But when a constitution lays down exact

procedures for the election of the president, for relations between the executive and legislative

branches, or for defining whether a particular governmental function is to be performed by the

federal government or a member state, then the only constitutional way to change these

procedures is by means of the procedure provided by the constitution itself for its own

amendment. Any attempt to effect change by means of judicial review or interpretation is

unconstitutional, unless, of course, the constitution provides that a body (such as the U.S.

Supreme Court) may change, rather than interpret, the constitution (Billias 1990; Bowie et al

1954).

43
Precisely, it is also contested that the legislative assembly should not be used to adopt the

constitution but through the constitutional assembly and to be directly elected as the people’s

representatives. There are opinions that suggest that inclusiveness in the constitution making

process is a key driver to achieving a people’s constitution. On the contrary, it can be

demonstrated that failure to ensure inclusiveness may result into a failed constitution making

process. For example, in 2011, there was a failed constitution bill on the floor of the parliament

during the reign of third Republican President Mr. Rupiah Bwezani Banda where the two-thirds

(2/3) majority could not be attained. The Patriotic Front (PF) by then in the opposition argued

that the Bill lacked a more inclusive constitution-making process. However, were of the strong

view of enacting the constitution by popular assembly known as constituent assembly and not the

parliamentary route. Understandably, opponents of adopting and enacting the constitution

through a constitute assembly believe that a parliamentary route is not worth to be trusted.

Many observers have expressed divergent views because the parliamentary route of adopting and

enacting a new constitution is often characterized by party position especially those in majority.

It is well known that the civil society and other interest groups’ shares a strong opinion that

adopting and enacting a constitution through constitute assembly is the most democratic and

people driven route. It is debated that a comprehensive approach of citizen’s involvement gives a

chance to them by influencing the thinking of parliamentarians and the outcome of the process.

The rest is now history that it is clear from the UNIP government and the two successive

governments, all are accused of imposing their own ideals on the majority of the people in the

constitution making process for political mileage.

44
Many constitutional documents make no clear distinction between that which is to be regarded as

constitutional, fundamental, and organic, on the one hand, and that which is merely legislative,

circumstantial, and more or less transitory, on the other. The constitution of the German Weimar

Republic could be amended by as little as four-ninths of the membership of the Reichstag,

without any requirement for subsequent ratification by the states, by constitutional conventions,

or by referendum. Although Hitler never explicitly abrogated the Weimar Constitution, he was

able to replace the procedural and institutional stability that it had sought to establish with a

condition of almost total procedural and institutional flux (Bagdanor 1988; Friedrich 1957).

A similar situation prevailed in the Soviet Union under the rule of Stalin. But Stalin took great

trouble and some pride in having a constitution bearing his name adopted in 1936. The Stalin

constitution continued, together with the Rules of the Communist Party of the Soviet Union, to

serve as the formal framework of government until the ratification of a new, though rather

similar, constitution in 1977( Bagdanor 1988; Friedrich 1957). The procedures established by

these documents, however, were not able to provide Soviet citizens and politicians with reliable

knowledge of the rules of the political process from one year to the next or with guidance as to

which institutions and practices they were to consider fundamental or virtually sacrosanct and

which they could safely criticize. As a result, changes in the personnel and policies of the Soviet

Union and of similar Communist regimes were rarely brought about smoothly and frequently

required the use of violence (Bagdanor 1988; Friedrich 1957).

45
Constitutional stability

Typically, authors agree that if one distinguishes between stability and stagnation on the one

hand and between flexibility and flux on the other hand, then one can consider those

constitutional systems most successful that combine procedural stability with substantive

flexibility—that is, that preserve the same general rules of political procedure from one

generation to the next while at the same time facilitating adaptation to changing

circumstances(Blaustein et al 1986; Richards 1989; Simons 1980).

In real terms, by reference to such criteria, those written constitutions have achieved the greatest

success that are comparatively short; that confine themselves in the main to matters of procedure

(including their own amendment) rather than matters of substance; that, to the extent that they

contain substantive provisions at all, keep these rather vague and generalized; and that contain

procedures that are congruent with popular political experience and know-how. These general

characteristics appear to be more important in making for stability than such particular

arrangements as the relations between various organs and levels of government or the powers,

functions, and terms of tenure of different officers of state (Aristotle 1972; Aristotle 1972;

Barker 1959; Crook 1991; Spiro 1959).

There is little evidence to support the thought that a high level of citizen participation necessarily

contributes to the stability of constitutional government. On the contrary, the English political

economist Walter Bagehot, who in 1867 wrote a classic analysis of the English constitution (The

English Constitution), stressed the “deferential” character of the English people, who were quite

happy to leave government in the hands of the governing class(Aristotle 1972; Aristotle 1972;

Bagehot 1993).

46
Political theory

Aristotle once remarked that “Man is a political animal”. He stressed that human beings are

created of flesh and blood, rubbing shoulders with each other in cities and communities.

Aristotle's political studies combine observation and theory. He and his students documented the

constitutions of 158 states—one of which, The Constitution of Athens, survived on papyrus.

Aristotle asserts that all communities aim at some good (Aristotle 1972; Aristotle 1972; Barker

1959; Crook 1991; Spiro 1959).

The state (polis), by which he means a city-state such as Athens, is the highest kind of

community, aiming at the highest of goods. The most primitive communities are families of men

and women, masters and slaves. Families combine to make a village, and several villages

combine to make a state, which is the first self-sufficient community. The state is no less natural

than the family; this is proved by the fact that human beings have the power of speech, the

purpose of which is “to set forth the expedient and inexpedient, and therefore likewise the just

and the unjust.” The foundation of the state was the greatest of benefactions, because only within

a state can human beings fulfill their potential (Aristotle 1972; Aristotle 1972; Barker 1959;

Crook 1991; Spiro 1959).Simultaneously, Aristotle (1972) in his proposition argued as follows:

Government must be in the hands of one, of a few, or of the many; and

governments may govern for the general good or for the good of the rulers.

Government by a single person for the general good is called “monarchy”; for

private benefit, “tyranny.” Government by a minority is “aristocracy” if it aims at

the state's best interest and “oligarchy” if it benefits only the ruling minority.

47
 Popular government in the common interest Aristotle calls “polity”; he reserves

the word “democracy” for anarchic mob rule.

If a community contains an individual or family of outstanding excellence, then, Aristotle argued

that a monarchy was the best constitution. But such a case is very rare, and the risk of

miscarriage is great, for monarchy corrupts into tyranny, which is the worst constitution of all.

Aristocracy, in theory, is the next-best constitution after monarchy (because the ruling minority

will be the best-qualified to rule), but in practice Aristotle preferred a kind of constitutional

democracy, for what he called “polity” is a state in which rich and poor respect each other's

rights and the best-qualified citizens rule with the consent of all (Aristotle 1972; Aristotle 1972;

Barker 1959; Crook 1991; Spiro 1959).

Two elements of Aristotle's teaching affected European political institutions for many centuries:

his justification of slavery and his condemnation of usury. Some people, Aristotle says, think that

the rule of master over slave is contrary to nature and therefore unjust. But they are quite wrong:

a slave is someone who is by nature not his own property but someone else's. Aristotle agreed,

however, that in practice much slavery is unjust, and he speculated that, if nonliving machines

could be made to carry out menial tasks, there would be no need for slaves as living tools.

Nevertheless, some people are so inferior and brutish that it is better for them to be controlled by

a master than to be left to their own devices (Aristotle 1972; Crook 1991; Spiro 1959).

Although he did not consider himself as an aristocrat, Aristotle had an aristocratic disdain for

commerce. Our possessions, he says, have two uses, proper and improper. Money too has a

proper and an improper use; its proper use is to be exchanged for goods and services, not to be

48
lent out at interest. Of all the methods of making money, “taking a breed from barren metal” is

the most unnatural (Aristotle 1972; Aristotle 1972; Barker 1959; Crook 1991).

More precisely, constitutional government is defined by the existence of a constitution—which

may be a legal instrument or merely a set of fixed norms or principles generally accepted as the

fundamental law of the polity—that effectively controls the exercise of political power. The

essence of constitutionalism is the control of power by its distribution among several state organs

or offices in such a way that they are each subjected to reciprocal controls and forced to

cooperate in formulating the will of the state (Aristotle 1972; Aristotle 1972; Barker 1959; Crook

1991; Spiro 1959).

In this sense, constitutional government flourished in England and in some other historical

systems for a considerable period, it is only recently that it has been associated with forms of

mass participation in politics. In England, for example, constitutional government was not

harnessed to political democracy until after the Reform Act of 1832 and subsequent 19th-century

extensions of the suffrage. In the contemporary world, however, constitutional governments are

also generally democracies, and in most cases they are referred to as constitutional democracies

or constitutional-democratic systems (Aristotle 1972; Barker 1959; Crook 1991).

The contemporary political systems that combine constitutionalism and democracy share a

common basis in the primacy they accord to the will of the majority of the people as expressed in

free elections. In all such systems, political parties are key institutions, for they are the agencies

by which majority opinion in a modern mass electorate is mobilized and expressed. Indeed, the

history of the political party in its modern form is coincidental with the development of

contemporary constitutional-democratic systems. In each case, the transition from the older

49
forms of constitutionalism to modern constitutional democracy was accompanied by the

institutionalization of parties and the development of techniques of party competition (Bagehot

1993; Richards 1989; Simons 1980).

The essential functions of political parties in a constitutional democracy are the integration of a

multitude of interests, beliefs, and values into one or more programs or proposals for change and

the nomination of party members for elective office in the government. In both functions, the

party serves as a link between the rulers and the ruled: in the first case by allowing the electorate

to register an opinion on policy and in the second by giving the people a chance to choose their

rulers. Of course, the centralized, autocratically directed, and ideologically orthodox one-party

systems of totalitarian regimes perform neither of these functions (Bagehot 1993; Blaustein et al

1986; Richards 1989; Simons 1980).

The two major types of constitutional democracy in the modern world are exemplified by the

United States and Great Britain. The United States is the leading example of the presidential

system of constitutional democracy; Britain, although its system is sometimes referred to as a

cabinet system in recognition of the role of the cabinet in the government, is the classic example

of the parliamentary system( Billias 1990; Barker 1959).The U.S. presidential system is based on

the doctrine of separation of powers and distinguishes sharply between the personnel of the

legislature and the executive; the British parliamentary system provides for the integration or

fusion of legislature and executive.

In the U.S. system the separation of legislature and executive is reinforced by their separate

election and by the doctrine of checks and balances that provides constitutional support for

routine disagreements between the branches; in the British system the integration of legislature

50
and executive is reinforced by the necessity for their constant agreement, or for a condition of

“confidence” between the two, if the normal processes of government are to continue( Billias

1990; Barker 1959; Crook 1991).

For example, in the U.S. system reciprocal controls are provided by such devices as the

presidential veto of legislation (which may be overridden by a two-thirds majority in Congress),

the Senate's role in ratifying treaties and confirming executive nominations, congressional

appropriation of funds and the exclusive ability to declare war, and judicial review of legislation;

in the British system the major control device is the vote of “no confidence” or the rejection of

legislation that is considered vital(Aristotle 1972; Barker 1959; Wormuth 1949).

Generally, it can be contested that a constitutional democracy is a hybrid of presidential-

parliamentary system, for instance the government of France. In such systems there is both a

directly elected president with substantial executive powers and a presidentially appointed prime

minister, who must retain majority support in the legislature. If the president's party or coalition

also controls a legislative majority, the prime minister is generally a secondary figure,

responsible for the day-to-day running of the government. However, the office of prime minister

becomes more important when one party or coalition controls the presidency and a rival party or

coalition retains majority support in the legislature. During such periods the president generally

appoints the leader of the legislative majority as prime minister (Bagehot 1993; Billias 1990;

Barker 1959; Crook 1991).

51
Conclusion and Summary

Broadly speaking, popular mode of adoption in the constitution-making process, if managed

wisely, is an important prerequisite for stability, national unity and constitutional legitimacy.

From the doctrine and practice of constitutionalism and constitutional law now and for the

future, the citizenry should have an opportunity to enact a constitution for long term democratic

stability which is divorced from partisan politics. It should be appreciated that there is no “one-

size-fits-all” approach to constitutionalism as a single print blue generally accepted by all. As the

case may be the degree of public participation depends on the social, political and cultural

context. Yet there are some general indications as to what could work in practice can also have a

detrimental effect on the well-being of those governed.

Unfortunately, the doctrine and practice of constitutionalism in most developing countries lack

popular legitimacy, as it did not take into account most of the submissions made by the people. It

can be argued quite reasonably that people’s participation in constitution-making process from

beginning to its completion is an inevitable prerequisite of any democratic institution,

community or society. In its absence, the final product of that process (the Constitution) suffers

setbacks with regard to ownership by the people who are the ultimate custodians of the

Constitution.

Although the doctrine and practice of constitutionalism and constitutional law is apparently

weakened by excessive state power, it has been a factor of considerable importance to the respect

of rule of law. Often there is a borrowed western culture of constitutionalism in most developing

nations. This presents continental dimensions of constitutional problems which can never be

solved by Western constitutionalism. It is essential that the constitution becomes a living

52
organism which should always function within a scope of the mandate. In many developing

nations, constitutionalism cannot fulfill even this more modest function, and does not restrain the

government because it is not the expression of a firm belief in the importance of doing so.

More especially, bills of rights remain empty paper declarations because the ruling party or

clique readily identifies itself and its power with the public interest. This tendency is enhanced

by the practice in autocratic and totalitarian regimes. Constitutional practices remain what they

are on paper but are altered by the effective rulers of the dominant ruling party. It is important

educate citizens on the contents of the Bill of Rights so that they can make an informed opinion.

Normally, there is always a ploy by those in governing seat to try and deceive their own citizenry

on the implications of the same the pertinent clauses in the Bill of Rights.

An unstable political system in some countries is due to vulnerability to constitutionalism crisis

that break down various forms of governance structures. The fundamental cause of instability is

as a result of failure by governments to respect the provisions of the constitutionalism. A theory,

practice and doctrine of constitutionalism appear to be the lack of a widespread sense of the

legitimacy of state authority. Governments which govern without the political legitimacy from

the citizenry suffer from gravest handicap as the legitimacy of the regime is widely questioned

and challenged.

To a certain degree, the problem of legitimacy of political leadership has often led to established

regimes to fall even when there are so defensive. In most of the post-colonial era, for instance in

Africa, the political leadership found it as a source of great difficulty because they often wanted

to rule forever even when the tenure office expired. Many failed to emulate some of the good

doctrine and practice of constitutionalism from the Western capitalist states. They argued that

53
borrowing eclectically from Western political philosophies and systems of law would create bad

constitutional frameworks and institutional structures that lacked meaning to their state structures

from the African point view.

Closely attributed to the problem of legitimacy is a breakdown of political systems resulting into

a failed state without constitution supremacy. In many developing countries, there is an absence

of fundamental consensus on what is the appropriate doctrine and practice of constitutionalism.

Most regimes are well-established but lack open channels and procedures for resolving

grievances relating the doctrine and practice of constitutionalism. Although constitutionalism

allows changes to occur mainly in a peaceful manner, there is no assurance that the will of the

people will prevail. In an unstable political system, often there is intolerance as such divergent

views are potentially not accepted even when people are generally agreed to change the doctrine

and practice of constitutionalism.

54
References

Aristotle, B.E. (1972). Aristotle’s political theory. London: Macmillan.

Aristotle, B.E. (1972). The politics of Aristotle: Berkeley: University of Californian Press.

Bagehot, W. (1993). The English Constitution. Colarado: Westview Press.

Barker, E. (1980). Social contract: Essays by Locke, Hume, and Rousseau. New York: Dover.

Beer, L.W. (1979). Constitutionalism in Asia: Asian views of the American influence.

Cambridge: Princeton University Press.

Billias, G.A (1990). American constitutionalism abroad: Selected essays in comparative

constitutional history. New York: Oxford University Press.

Blaustein, A.P & Epstein, D.B. (1986). Resolving language conflicts: A study of the world's

constitutions. Oxford: Clarendon Press.

Blaustein, A.P & Flanz, G.H. (1971). Constitutions of the countries of the world. Oxford:

Clarendon Press.

Blaustein, A.P. & Sigler, J.A. (1988). Constitutions that made history. London: Macmillan

Bogdanor, V. (1988). Constitutions in democratic politics. Oxford: Clarendon.

Bowie, R.R & Friedrich, C.J. (1954). Studies in federalism. Boston: Little Brown & Company.

CCZ, ZEC, EFZ. (2001).Third term bid by President Chiluba,” Press Release, 25 January.Ndola:

Mission Press

55
Crook, J.A (1991).The Athenian democracy in the age of Demosthenes. Chicago: University of

Oklahoma Press.

Dicey, A.V. (1985). Introduction to the study of the law of the constitution, London: Macmillan

Elster, J & Slagstad, R. (1988).Constitutionalism and democracy. New York: W. W. Norton.

Friedrich, C, J. (1950). Constitutional government and democracy: Theory and practice in

Europe and America. Boston: Ginn.

Friedrich, C. J. (1957). Constitutional reason of state: The survival of the constitutional order.

Chicago: Brown University Press.

Friedrich, C.J. (1968). Constitutional government and democracy: Theory and practice in Europe

and America. Chicago: Brown University Press.

Greenberg et al. (1993).Constitutionalism and democracy: Transitions in the contemporary

world: The American Council of Learned Societies Comparative Constitutionalism Papers. New

York: W. W. Norton.

GRZ. (1995). Mwanakatwe Commission: Summary of Recommendations and Government’s

Reaction to the Report. Lusaka: Government Printer.

GRZ. (2005). Mung’omba Constitution Review Commission, Final Report, 29 December.

Lusaka: Government Printer

GRZ. (1991). Mvunga Commission: Governments’ Reactions to the Summary of

Recommendations. Lusaka: Government Printer

GRZ. (1996). The Constitution of the Republic of Zambia. Lusaka: Government Printer

56
Hasungule, M. (2004). Experiences at constitution-making in SADC: The Zambian Experience,”

in Open Society Initiative for Southern Africa, Edition 4, Issue 3, November, pp. 28- 32.

Henriot, P. (2003). What is a Constitution and why do we have one? (On line). Available on:

www.jctr.org.zm/publications.htm.{Accessed on July 2012}.

JCTR. (2004). Zambia’s economic, social and cultural rights: Why should they be in the new

constitution? Third Quarter Policy Brief. Lusaka: JCTR.

Livingston, W.S. (1974). Federalism and constitutional change. London: Oxford University

Press.

Lutz, D.S. (1988). The Origins of American Constitutionalism. Cambridge: Princeton University

Press.

McWhinney, E. (1981). Judicial review and constitution-making: Principles, Process, Practice

Pocock, J. G. A. (1957).The Ancient Constitution and the Feudal Law: A Study of English

Historical Thought in the 17th Century. Cambridge: Cambridge University Press.

Richards, D.A.J. (1989). Foundations of American Constitutionalism. Oxford: Clarendon.

Simons, W.B. (1980).The Constitutions of the Communist World. New York: Oxford University

Press.

Spiro, H.J. (1959). Government by constitution: The political systems of democracy New York:

W. W. Norton.

Spiro, H.J. (1967). Patterns of African development: Five Comparisons. New York: W. W.

Norton.

57
Sunday , N. (2013). Constitutional law, constitutionalism and democracy. (On line). Available

on:http://www.grin.com/en/e-book/213984/constitutional-law-constitutionalism-and-

democracy{Accessed on July 2015}

Thurow, S.B. (1988). Constitutionalism in America: The United States Constitution in Twentieth

Century Politics. Cambridge: Princeton University Press.

Wheare, K. C. (1951). Modern constitutions. Oxford: Oxford University Press.

Wormuth, F. D. (1949).The origins of modern constitutionalism. New York: Harper.

ZEC. (2003). Let my people go. Pastoral letter on the 2003 constitutional review process.
Lusaka: ZEC.

58