Course Code: PUL 201

Course Title: Constitutional Law

Module: Sources and classifications/types of Constitution

Module Objectives
1. To discuss the sources of a Constitution

2. To explain the classification of constitution

3. To explicate the difference between the types of constitutions

4. To identify the advantages and disadvantages of each constitutional

classifications

Module 1: Sources of Constitution

Unite 1: Introduction
The United Kingdom does not have a single document known as the 'Constitution'
and as such, its constitution is not codified.

In fact, no constitution globally is contained within a single document; even 'written

constitutions' are merely a starting point for the full body of constitutional law, which
elaborates upon the countries governance structure.

Though, written documents might offer fundamental constitutional principles, but

there are further texts which supplant and elaborate upon the basic principles.
Ordinary legislation is drafted in order to provide fuller information about those basic
principles which are stated in the constitution.

Let’s look at some of the sources of constitutions:

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Unit 2: Opinions of political and constitutional writers
The writings and opinions of great political thinkers is one of the sources of a
constitution. This because the concepts; such as Separation of Powers, Checks and
Balances, Rule of Law, Socialism, Capitalism etc, were proposed by great writers on
politics.

Informal resolutions between parties in constitutional matters can be made where

there is no legislative solution to an issue.

Such constitutional conventions or political precedents can be created in this way

when relevant parties show evidence of being willing to adhere to the resolution to
the issue.

Unit 3: Constitutions of other countries

Framers of Nigerian the Constitution can study constitutions of other countries and
pick up best practices which may then be incorporated into the new constitution.

It is believed that parts of the 1960 Constitution of Nigeria were derived from the
content of the American, French and British Constitutions.

Unit 4: History, customs and traditions of the people

The customs and traditional practices of the Nigerian people is also a source of the
Constitution. These may be portions of the constitution that have not been written
down but which over the years have been accepted as practices under the
constitution. For instance the Supreme Court in Sokwo v Kpongo (2008) 4 MJSC
130 said:

Customs that are accepted as legal requirements or

obligatory rules of conduct, practices and beliefs that are
so vital and intrinsic a part of a social and economic
system that they are treated as if they are laws.

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Customary law in Nigeria which includes Islamic law is a question of fact to be
proved by evidence and it is now settled that where a custom has been sufficiently
decided upon by a competent court, judicial notice of the same can be taken and the
court will not require further proof of the same custom.

See sections 16 and 17 of the Evidence Act, also Agbai v. Okagbue (1991) 9-10
SCNJ49 and Ojiogu v Ojiogu (2010) 3 MJSC (Pt iii) 121 at 131-2: The Supreme
Court held that “Itugha Nkwu” custom dictates that for a brother to re-marry his
late brother’s wife he has to perform “Itugha Nkwu” custom. The effect of its
performance is that the brother of the deceased now takes over the burden and
responsibilities including inheriting the proprietary rights of the late brother’s family
as he remarries his late brother’s wife. But where this custom has not been
performed because the late brother’s wife is not willing; It is permissible for the
brother all the same to perform “Inye Mina” custom which enables the widow of his
late brother to end the widowhood and re-integrated into the family and larger
society.

There are constitutional provisions that established the adoption of customary law.
The aspects of customary law in the Nigerian Constitution are: For example the
establishment of Customary Court and Shari’ah Court of Appeal (sections 244, 245,
260; 265, 275 and 280)

The Nigerian constitution added an integrative measure, requiring that some justices
of the Court of Appeal be learned in customary law. (See section 237(2)(b) of 1999
Constitution): it provides

“a such number of Justices of the Court of Appeal, not

less than forty-nine of which not less three shall be
learned in Islamic Personal Law and not less than three
shall be learned in Customary Law, as may be prescribed
by an Act of the National Assembly.

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Unit 5: Previous constitutions
Also, previous constitutions are also a source of the Nigerian Constitution. In coming
out with a new constitution after a previous one has failed or after a long period of
military rule, the earlier constitution is studied and aspects that are relevant are
incorporated into the new one. It is believed that 1960, 1963, 1979 and 1999
constitutions influenced some of the provisions of the 1969 constitution.

Particularly, it has been argued that the 1999 Constitution is almost the same as the
1979 Constitution with only some modifications.

Unit 6: Decisions and outcomes of constitutional

conferences
Decisions and outcomes of constitutional conferences or constituent assembly most
often influence the draft the constitution for a country. Proposals are forwarded to the
constitutional conferences or assembly from various quarters of the country and
these proposals are thoroughly discussed and decisions arrived at are most often
included in the Constitution.

Examples are: the 1950 Ibadan conference, London conferences of 1953/1957;

Lagos conference of 1954, 1958 and 1963 and 1976 report of Constitution drafting
Committee CDC.

Unit 7: Judicial Precedent

In a common law system, the courts also interpret the statutory legislation by
clarifying points of law which require interpretation.

Judicial precedent in Nigeria binds lower courts and creates a series of judicial
decisions which itself can be considered a source of constitutional law.

Judicial precedent is defined as a judgment of a court of law, cited as an authority for

deciding a similar set of facts in a similar case.

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It is a practice whereby courts follow earlier decision or judgment made by a judge in
a similar case. Judicial rulings sometimes influence the making of or even found their
ways into the constitution.

Example that can be given to underscore this source abound in the Supreme Court
decisions such as:

The cases of Obi v INEC (2007) 9 MJSC 1 and People Democratic Party v INEC
(1999) 7 SC (pt ii) 30

In Obi v Independent National Electoral Commission, the Supreme Court held

that: where in the absence of clear legislation or provision on the issues of when
tenure of a governor commences, the Supreme Court in its bold and activists stand
held: “…applying the provision of section 180(2)(a) of the Constitution to the facts of
this case which are not in dispute the four year term of office of Peter Obi, as
governor of Anambra state would start running from the 17 th of March 2006 only to
terminate on the 17th of March 2010”.

Similarly in People Democratic Party v INEC (1999) 7 SC (pt ii) 1 at 53 – 55; the
Supreme Court faced with the construction of sections 37(1) and 45(1) of Decree
(No 3 of 1999) as relate to the time when the seat of an elected governor is deemed
to be vacant gave a wider meaning to the word ‘die’ and held that by virtue the said
provisions, the 2nd respondent (Bonnie deputy governor elect) is entitled to be sworn
in as governor. The Court held thus

The word die is given as synonymous with “breathe ones

last, deceased, expire, finish, decay, decline, disappear,
dwindle ebb, end, and lapse, vanish, wane, wilt, wither,
and fizzle out. The meaning given by this word “die” is
wide enough, in my own opinion to embrace what Alhaji
Atiku Abubakar did in relinquishing his mandate to
occupy the office of governor of Adamawa state. I will
therefore give the word die a wider meaning than had
held by the Court of Appeal, consequently, I hold that by
the provision of section 37(1), the respondent as deputy
governor of Adamawa State elect is entitled to be sworn
in as governor of Adamawa State. This accord with
justice of the case, there is no doubt in my mind that the
meaning ascribed to the word died.

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Unit 8: Treaties and International law
An example is the Universal Declaration of Human Rights and African Charter on
Human and People’s Rights influence on the incorporation of Fundamental Human
Rights in the Chapter IV of the Nigerian Constitution.

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MODULE 3: Classifications of Constitution

Unit 1: Evolved and Enacted Constitution:

(a): Evolved Constitution

1. An evolved constitution is the result of the historical development.

2. It is not framed at a particular time.

3. For example, the British Constitution has neither been enacted by any special
Constituent Assembly at a particular time nor has the Monarch given it to the
people.

4. Constitutionally, England is still an absolute kingship, but in practice her

position is different.

5. In practice all the powers are in the hands of the Cabinet and the Monarch
has only nominal powers. This is the result of the centuries’ long struggle of
the British people against their Monarchs. For example, till Tudor period, the
British Monarchs were quite absolute.

6. Till today, the British Constitution has developed very much and the
conventions have contributed a lot to its development.

(b): Enacted constitutions:

1. Is framed at a particular time, like the American, India and South African
Constitutions, which were framed by a Constituent Assembly after the
declaration of Independence.

2. In France, the first constitution was framed in 1830, the second in 1848, the
third in 1871, the fourth in 1946 and the fifth in 1958.

3. After Second World War, new Constitution of India was completed on

November 26, 1949 and it was introduced on January 26, 1950.

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Unit 2: Legal and Real Constitution:
1. The written elements of the constitution constitute legal constitution and

2. When the conventions and decisions of the courts are added to it, it becomes
the real constitution.

3. For example, the Constitution of America can be read in a few hours, but one
cannot get real and complete information about the constitution in this way.

Marbury v Madison, Roe v Wade (abortion); PDP v

INEC (1999) 7 SC (Pt ii) 1 at 53-5; DSSS v Agbakoba
(1999) 7 SC (Pt ii) Obi v INEC

4. Real knowledge can only be acquired when besides the constitution; we study
the decisions of the judges, and also customs and conventions.

5. The Constitution of America was very rigid, but because of conventions

and a liberal interpretation of the constitution by the judges, it has
become quite viable.

Unit 3: Written and Unwritten Constitution:

According to Dr. Garner, the difference between the evolved and enacted
constitution is similar to that of written and unwritten constitution.

Written constitution is one whose basic principles are written.

A written constitution is generally an instrument of special sanctity distinct in

character from all other laws, proceeding from the different sources, having a higher
legal authority and alterable by a different procedure”.

1. Written constitution is found in legal documents duly maintained in formal

law.

Unwritten constitution contains principles of government that have never

implemented as law.

2. Written constitution is precise, definite and systematic. It is the result of

efforts made by the people conscious and deliberate.

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 Unwritten constitution is indefinite, unsystematic and un-precise. Such a
constitution is not the result of the conscious and deliberate efforts of the
people.

3. Written constitution is created by a representative body elected by the

people at a particular period in history.

Unwritten constitution is not created by a representative component

assembly. So it is sometimes called a developed or cumulative constitution.

4. Written constitution is always promulgated at a specific date in history.

Unwritten constitution has no fixed date, as it has evolved over time.

5. Written constitution is generally rigid and its amendments require

constitutional laws. In other words, the distinction between constitutional law
and common law is maintained. The first is considered to be superior to the
second.

Unwritten constitution is not rigid and its amendments do not require any
law. In other words, the distinction between constitutional law and common
law is not maintained.

6. Written constitution can also be called an enacted constitution.

7. Unwritten constitution can also be called an un-enacted constitution.

8. Unwritten constitution is one whose major portion is not written. Mostly it

includes customs and the decisions of the courts. Such type of constitutions is
not framed by any Constituent Assembly.

The difference between the written and unwritten constitution generally relates to the
ordinary and constitutional laws. In England, the Parliament has the right to
amend both the ordinary and constitutional laws but in America, France and India
this is not the case, because in these countries there is a special procedure to
amend the constitutional laws. Generally an unwritten constitution is flexible, while a
written constitution is rigid.

In England, many Acts and the Charters like Magna Carta of 1215, Bill of Rights,
1688, Habeas Corpus Act, 1679 and Reform Acts of 1832, 1867 and 1884 and the
decisions of the judges have become an integral part of the constitution.

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Unit 4: Rigid and Flexible Constitution:
1. Rigid constitution cannot be easily amended. It has very complex
modification procedures.

Flexible constitution can be amended with the same ease as the general
laws.

2. Rigid constitution cannot be accommodated according to the changing

needs of society. No legislature can temper with them, because they are
superior to common law.

Flexible constitution can be adjusted to suit the changing needs of people

and society.

3. Rigid constitution is essentially written constitution composed of

experienced and learned people. Thus it is symbol of national efficiency.

Flexible constitution is very useful for developing country because it will not
be a hindrance to progress due to its adaptability.

4. Rigid constitution does not develop and expand. People consider it as a

sacred document and they are ready to work according to its provisions.

Flexible constitution grows and expands as nature matures.

5. Rigid constitution does not reflect the changing pulse of public opinion. In
other words it represents the minds of experienced and learned people who
initially implicated it.

Flexible constitution reflects the changing pulse of public opinion. In other

words it represents the mind of the people.

6. Accordingly, legislatures should not have a constitution in their hands. So, a

rigid constitution is based on the assumption that it is the perfect constitution
for all time. A flexible constitution is based on the sound assumption that there
cannot be a right constitution for all time

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Unit 5: Monarchial and Republican Constitution
1. No difference of any general importance

2. It tells nothing about knowing the substance of government

3. There can be an absolute monarch or one with extensive personal

discretionary powers (as in Nepal) or one with limited power personal powers

i. i.e. United kingdom and several commonwealth and western European

countries

4. One can have President who is head of state but is not effective head of
government (i.e. India and Western Germany) that was the Nigeria situation
during the first Republic that is 1963 -1966 January 15th)

5. It may be one who is both head of state and head of government (as in United
States and Nigeria during the Second Republic i.e. October 1 st 1979 –
December 31st 1983)

Unit 5: Presidential and Parliamentary Constitution

1. It concerns executive branch and its relationship with the Parliament
(Legislature)

2. Under Presidential system the head of the executive branch is also the head
of state and is not a member or directly responsible to the legislature

3. In Parliamentary system, the Chief Executive is Prime Minister who is a

member of and is responsible to the Legislature

i. Example: the American style and its imitators (Nigeria) are

distinguishable from West Minister style

4. Note however that this classification is not very illuminating, because of wide
variations within each system.

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Example:

i. In Kenya there is Executive President but he has to be a member of

the Legislature

ii. In Tanzania and several other Presidential regimes in Africa, the

President cannot be a member of the Legislature

Unit 6: Unitary and Federalism

Unitarianism means the concentration of the strength of states in the hands of one
visible sovereign power; while Federalism means the distribution of the powers of
the states among a number of co-ordinate bodies.

In the common parlance 'Federal-Government', is construed as a 'Simple

Association of States for the common purpose.

Unitary constitution:
1. Unitary constitution is a constitution in which all powers are concentrated or
centralized in a single hands or single body.

2. There is sovereignty of the central or union government and all other

governments are subordinate to central government.

3. Source of all powers is in central government and other governments have to

obey the order of supreme government.

4. In unitary constitution, there is no division of powers between Central and

State Governments, though there are internal divisions, but there is no
division of powers.

5. Central and State governments are not co-equal and sovereign, to each other.

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Federal Constitution
1. Federal constitution is formed by the union of pre-existing states which give
up some position of their sovereignty and powers for the common
administration of certain matters of general interest to all the member states.

2. In Federal constitution, the source of power is constitution, for the both

governments.

3. Constitution is supreme authority over the central and state governments.

4. In Federal constitution there is division of powers between Federal or Central

Government and State Governments.

5. Both Governments exist side by side without interferes with each other. Both
are sovereign in their field and not subordinate to each other.

6. Centre and the states have to perform their roles according the provisions of
the constitution.

Unite 8: Confederation and 'Federal Government

1. Confederation and 'Federal Constitutions have an element of 'Association of
States', but all are not alike in nature.

2. Federal Government along with the element of 'Association of States' has

other required elements, such as:
i. Supremacy of constitution,
ii. Division of powers between central and state governments,
iii. Equal existence of both governments,
iv. Rigid Amending Process, etc.

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 3. In confederation so many states are associated for a common purpose but
they do not closely bind each other in a simple body for administration of the
country as in the case of Federal Government.

4. In such association one state becomes supreme executive head and others
are subordinate to it. There is no co-existence between all states.

5. Confederation' is also association of so many states like a 'League of Nation',

but it differs from it, because it takes part in administration of the Nations
whereas in the league of Nation there is no chance of it.

6. In confederation, though states members take part in general government but

they are like an Agent. They have no co-equal existence as in a Federal
Government. Against the above background it is rightly observed
"A confederation is a loose association of
independent states which create a union or central
government for certain limited common purposes,
while the' member states retain their principal
powers of government and the very existence of
central government depends on the will of the
member-states.

7. In confederation, the Central Government has no direct authority over citizens

in the several states, whatever power it possess has to be exercised through
the component states.

8. The central authority in a confederation is a mere agency of the members-

states and the letter have powers superior to that agency.

9. The Central Agency has a direct relationship with the people and the
commands of agency would operate upon the people in each individual’s
state only to the extent the State Government so permits.

10. The best example of confederation: are American Confederation

1781 to 1789 and Swiss Confederation since 1219 to 1848.

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 i. In both Governments there is no coexistence between Central and
State Governments, so it would not become the Federal Government.
ii. To remove this defect and in order to convert confederation into a
Federal Government, they adopted new constitutions.

11. Federalism is a strong association in which Central and State Governments

co-exist, and each is not subordinate to each other. They derive their Powers
from the constitution and do not defend on the will of the states.

12. A Federal State, on the other hand, is a union of several states into a Central
or Federal Government.

13. Federal and State Governments existence and authority is derived from the
Federal constitution which distributes governmental powers between the
Federal and the State Governments, which are to be exercised by them,
according to constitutional distribution, independent of each other. 1t8

14. "Unitarianism: means the concentration of the strength of the State in the
hands of one visible sovereign power.

15. Federalism means the distribution of the force of the state among a number of
co-ordinate bodies each originating in and controlled by the constitution.

16. Similarly the Federal Government in turn, exercises its authority within the
spheres defined in the same constitution.

Unit 7: Single-Party and Multi-Party Systems

1. A one-party state, single-party state, one-party system, or single-party system

2. It is a type of unitary state in which only one political party has the right to
form the government, usually based on the existing constitution.

3. All other parties are either outlawed or allowed to take only a limited and
controlled participation in elections.

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 4. Sometimes the term de facto onPe-party state is used to describe a
dominant-party system that, unlike the one-party state, allows (at least
nominally) democratic multiparty elections, but the existing practices or
balance of political power effectively prevent the opposition from winning
power.

5. One-party states explain themselves through various methods.

6. Most often, proponents of a one-party state argue that the existence of

separate parties runs counter to national unity.

7. Others argue that the one party is the vanguard of the people, and therefore
its right to rule cannot be legitimately questioned.

8. The Soviet government argued that multiple parties represented the class
struggle and because of this the Soviet Union legally authorized and
recognized a single party leading the proletariat, namely the Communist Party
of the Soviet Union.

9. Some one-party states only outlaw opposition parties, while allowing allied
parties to exist as part of a permanent coalition such as a popular front.

10. However, these parties are largely or completely subservient to the ruling
party and must accept the ruling party's monopoly of power as a condition of
their existence.

i. Examples of this are the People's Republic of China under the United
Front, the National Front in former East Germany and the Democratic
Front for the Reunification of Korea in North Korea.

11. Others may outlaw all other parties yet allow non-party members to run for
legislative seats as independent, as was the case with Taiwan's Tangwai
movement in the 1970s and 1980s, as well as the elections in the former
Soviet Union.

12. Still others may both outlaw all other parties and include party membership as
a prerequisite for holding public office, such as in Turkmenistan under the
rule of Saparmurat Niyazov or Zaire under Mobutu Sese Seko.

13. Within their own countries, dominant parties ruling over one-party states are
often referred to simply as the Party.

i. For example, in reference to the Soviet Union, the Party meant the
Communist Party of the Soviet Union; in reference to the pre-1991
Republic of Zambia, it referred to the United National Independence
Party.

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14. Most one-party states have been ruled by parties forming in one of the
following three circumstances:

15. One-party states are usually considered to be authoritarian, to the extent that
they are occasionally totalitarian.

16. But it is not all authoritarian or totalitarian states operate upon one-party rule.
Some, especially amongst absolute monarchies and military dictatorships,
have no need for a ruling party, and therefore make all political parties illegal.

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