Sources of Constitutional

Law
Session 2
© NU 2020
Objectives
 Clearly explain what is legislation
 Clearly explain what is judicial precedent
 Clearly explain what is a Convention
 Clearly explain what is Authoritative Opinions
 Describe the constitution itself (where it is

written)
Constitution v Constitutional Law
 The constitution refers to the document
(where codified or bound) that provides a
framework for determining the relationship
between the three arms of government.
Sources of written constitution
 Understanding the distinction between
sources of a (written) constitution and
sources of constitutional law is imperative.
 The sovereignty of the constitution lies in the

people of Zambia, who are its source

 It is a practical reality that without exception,
constitutions are drawn up and adopted
because people wished to make a fresh start,
so far as the statement of their system of
government is concerned…

 The circumstances provoking the break from

the past differ from country to country
Sources of Unwritten Constitution
 History plays a significant role in the type of
constitution that a particular country opts to
adopt.
 E.g. Zambia, USA, France, Kenya compared to

Britain.
Charters
 Oldest form of sources of unwritten British
constitution.
 It normally refers to the granting of rights or

privileges by the Crown hence their

constitutional effect.
 E.g. The Magna Carta 1215, the petition of

Rights 1628, The Bill of Rights 1689, the Act

of Settlement 1701 and Act of Union with
Scotland 1707.
Statutes
 Acts of parliament are sources of both
constitutional law and the unwritten
constitution itself.
 Burma Oil v The Lord Advocate[1965]AC 75

decision reversed by the War Damages Act of

1968.
Judicial Precedents
 The decisions of the highest court in the land
stand as sources of constitutional law and the
unwritten constitution.
 They take effect as sources of the

constitution under the doctrine of stare

decisis. Courts are therefore not obliged to
depart from already existing decisions unless
otherwise.
Conventions
 These are practices relating to the exercise of
their functions by the three arms of
government. They are usually not legally
enforceable but a religiously followed or
obeyed as though they were legally binding.
Observance of conventions
 The Supreme Court of Canada stated that the
main purpose of conventions is to ensure that
the legal framework of the constitution is
operated in accordance with the prevailing
constitutional values of the period
Authoritative opinion
 It is a general rule of English law that no legal
text book has intrinsic authority as a source
of law;
 the authority of the most eminent text books

is confined to the extent to which a court

considers that it accurately reproduces the
law as enacted by the legislature or decided
by earlier courts.
The Constitution
 Most jurisdictions like Zambia have a formal
written constitution which is the most
important source of constitutional law and
from which all other laws derive their
authority.
 Referred to as the Grand norm.