The massive majority of modern constitutions pronounce the rudimentary ideologies of the state, the structures and procedures of government and the fundamental privileges of the people in a higher law that cannot be individually altered by a regular legislative act. This superior law is frequently denoted as a constitution. The content and nature of various constitutions and how it relates to various political and legal order is different from country to country. This has made it very difficult to have one definition of the word constitution which goes uncontested.
To start off with this topic, let us take a look at how the Oxford dictionary of law defines the constitution. A constitution according to the Oxford dictionary of law is defined as, “the rules and practices that determine the composition and the functions of the central and local government in a state and regulate the relationship between the individual and the state”.
From the above definition we note that a constitution has been put in place to regulate the functions of government, to define the roles of the organs of government and also to establish laws that are very fundamental to the nation. These rules are obligatory to everyone within the state, including the lawmaking institutes. The constitution outlines the responsibility that has been placed on government concerning the different structures and operation of government institutions, political principles and it also gives government ample direction on how they need to deal with the people’s rights because the people are the custodians of the constitution.
The definition of the constitution coming from the oxford dictionary somehow does not do justice to the definition of the constitution because the dictionary was written in a land where they have an unwritten type of constitution. It is important to differentiate the variance between the constitution and constitutional law. A constitution is a document that houses the law which provides fundamental principles that govern a state and gives description to the various organs of government in a given state and also provides certain rights to the people. A constitution is there to guide the government and the people. It is a higher law.
They are many forms of constitutions and we are going to look at some of them and explain how they function. We have written constitution and unwritten constitution. A written constitution is codified and it contains all the fundamental laws governing a state in one written document. Zambia and the United States of America are among some of the countries that are using this type of constitution. The American constitution is one of the oldest constitutions in the world. It was written in 1789. The main reason this constitution was written was because people wanted a fresh start after gaining independence from British rule. The people of the United States did not want to go back into colonialism again and so they decided to formulate for themselves a constitution that was going to stand a test of time. An unwritten constitution on the other hand is uncodified. This does not mean that it is not written, what this means is that there is no formal document governing the state instead statutes, customs and conventions is what determines the law. The United Kingdom is one of the countries that is using this type of constitution.
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We also have the rigid and the flexible constitution. A rigid constitution is one that cannot easily be changed. This is so because the process that has been prescribed to amend such a constitution is detailed and has a lengthy manner of execution. A flexible constitution on the other hand is one that is easy to change. It is the opposite of the rigid constitution. The legislative procedures that are used to changed this type of constitution are ordinary ones.
There is also a monarchical constitution which governs a monarchy. A monarchy is a type of government whose head of state is the King or Queen. A prime minister is also put in place to handle the administrative duties but directly reports to the crown.
A federal constitution is a constitution governing a federation. Federal constitution is a constitution that separates the power that the central government has from the power that the sub-divisions of government have. In a federal government some states stand autonomous and they are able to make rules and laws that govern that particular state. We can say they are partially self-governed.
The constitution has to undergo a process before a final constitution is signed and this process is called the constitutional making process. A seating president will appoint a commission following the demand from the people to either amend the current constitution or to do a total overhaul of the current constitution. The president then appoints a commissioner to head that commission. It is the duty of the commission to carry out the submissions that they have received from the people. It is important that constitutions are not made in isolation, they draw on the method, manuscripts and experiences of the constitutions that are already in existence in other parts of the world. In Zambia, the presidents since 1964 have all been using the inquiries Act to appoint constitutional review commissions.
After the commissions obtain the submissions from the people they then present it to the president who has to scrutinize the submissions before passing it on to parliament for debate. This is the weakness in this method of constitutional making process. Since the president is the one in charge of the choosing of the commission/commissioner, the president controls whatever the commission does and he has right to remove whatever submissions he deems not to favor his government or himself as an individual. I therefore submit that in my opinion the constituent assembly is a better process of formulating a constitution.
The constitution is the supreme law of the land. In article 1 (section 1) of the Zambian constitution it states that; “the constitution is the supreme law of the republic of Zambia and any other written law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency”. This statement shows us that which ever other law that exists outside the constitution can be overruled by the constitution. For example, customary laws may justify the marrying of a girl under the age of 16 as long as the bride price is paid and all the traditional marriage rites are observed. The constitution overrules that because it clearly states that everyone under the age of 16 is a minor and having canal knowledge with a minor is a criminal offence. The constitution is the only document that has the final say and rules above all other legal documents.
The authority of government to govern the people is given by the constitution. The preamble of the constitution of Zambia and of the US shows the supremacy of the constitution:
‘We, The People Of Zambia
Acknowledge the supremacy of God Almighty;
Declare the Republic a Christian Nation while upholding a person’s right to freedom of conscience, belief or religion;
Uphold the human rights and fundamental freedoms of every person;
Commit ourselves to upholding the principles of democracy and good governance;
Resolve to ensure that our values relating to family, morality, patriotism and justice are maintained and all functions of the State are performed in our common interest;
Confirm the equal worth of women and men and their right to freely participate in, determine and build a sustainable political, legal, economic and social order;
Recognise And Uphold the multi-ethnic, multi-racial, multi-religious and multi-cultural character of our Nation and our right to manage our affairs and resources sustainably in a devolved system of governance;
Resolve that Zambia shall remain a unitary, multi-party and democratic sovereign State;
Recognise And Honour the freedom fighters who fought for the independence of our Nation in order to achieve liberty, justice and unity for the people of Zambia;
And Direct that all State organs and State institutions abide by and respect our sovereign will;
Do Hereby Solemnly Adopt And Give To Ourselves This Constitution’.
The preamble of the United States of America reads as follows: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”.
Since the constitution is the reflection of the will of the people, the people are the ones that give government the mandate to govern. So, governments are expected to carry out their duties whilst respecting the people who elected them into office. Apart from supremacy this also shows us that the source of the constitution is the people and the constitution gives government the mandate and the power to carry out their duties whilst upholding the rule of law. The current South African President Cyril Ramaphosa noted on the South African Constitution that, “[South African constitution] belongs to all of us, not just the ruling party, or one section of South Africa. We all wrote this collectively with our blood, some with their lives, with tears and with our sweat. We claim it as ours, it enshrines the rights that make us live as South Africans and we will protect it because it belongs to us”.
Thomas Jefferson stated, “We hold these truths to be self-evident. That all men are created equal. That they are endowed by their creator with certain inalienable rights. That among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of those ends, it shall be the right of the people to alter or abolish it, and to institute new government, laying its foundations upon such principles, and organizing its powers in such form, as shall seem to them most likely to affect their safety and happiness”.
Why is it important to have a constitution or what is the importance of the constitution to a country? As Lutz notes; a constitution marries power with justice. The constitution exists to defend the rule of law and to put boundaries on the arbitrariness of power. It is the supreme law of the land that balances out the legal, political and social functions. It sets out And defines the duties, and the rights of the citizens of a nation e.g. freedom of speech, association, assembly, rights to be free from torture/physical abuse.
The constitution declares the sovereignty of the nation. The constitution of Ghana (1992) states that; “the sovereignty of the Ghanaian constitution resides in the people of Ghana in whose name for whose welfare the powers of government are to be exercised”. This clearly tells us that constitution protects peoples rights and it also outlines the duties of the people.
The constitution is a very important document because it promotes human equality. There is no greater person and there is no lesser person before the law, there is no male there is no female. We are all equal before the law. The constitution promotes gender equality and it protects the vulnerable of society. It is there to outline the rights of the people but also it outlines the punishment for anyone that breaks the law.
The constitution upholds the rule of law. It is the supreme document housing the laws of the land. All other laws are subject to the constitution. The constitution for example gives a right to every adult to vote. Adult citizens can participate in the electoral process which is a process where adult citizens are free to elect a leader of their choice without interference from the government or any other law enforcing agency. If a leader is voted into power today and the citizens feel that that particular leader is not delivering on his promise, they can decide not to give that individual or the entire party another mandate in office. It is a right of the citizens to choose leadership.
Part 3 article 11 of the laws of Zambia (1996) states that; “it is recognized that every person in Zambia has been and shall continue to be entitled to the fundamental human rights and freedoms of the individual, that it to say, the right , whatever his race, place of origin, political opinion, color, creed, sex or marital status but subject to the limitations contained in this part, to each and all the following, namely; (a) life, liberty, security of the person and protection of the law. (b) Freedom of conscience, expression, assembly, movement and association. (c) protection of young persons from exploitation. (d) protection for the privacy of his home and other property and from deprivation of property without compensation”.
The above rights come with responsibility. The constitution teaches the people living in the land responsibility. For example, no one is allowed to take away another person’s life unless that person is has been adjudged that he be sentenced to death, or maybe someone does it through self-defense which also needs to be proved before the courts of law.
The constitution provides for separation of power. It separates the three organs of into the executive, the legislature and the judiciary. The constitution gives independence to the three organs so that they operate autonomously. No one organ should interfere with the work of the other organ. The executive must not interfere with the work of the legislature and the judiciary and vice versa. The three organs have been put out there so that they can provide checks and balances to one another. The constitution is not just there again to make efficient the powers given to the executive, it is there to limit those powers. Power has the ability to corrupt and when you give the executive absolute power, the power will corrupt them absolutely! The constitution hence limits those powers of the people as they carry out the mammoth mandate of leading the people.
The constitution places down the national goals which makes the basic organization on which the nation respites. It is a road map that needs to be consulted from time to time as the nation continues to forge ahead in the agendas of national development, equity, good governance, accountability and transparency etc. It is important for the constitution to be consulted from time to time because it is a document that the founding fathers of the nations after consulting with the people came up with to charter the road map for the entire nation. That is why it is very important to consult and get submissions from the people before any amendment can be made to this sacred document. People should be consulted because the constitution is there for them and nothing that infringes on their rights should be documented as law. A constitution should not be forced on the people if that that constitution is going to have the respect of the people that it intends to guide and protect. The rights of the government to govern the people is obtained from the constitution. The constitution binds all persons of Zambia, state organs and state institutions. It describes the relationship that the aforementioned share with one another.
The constitution stands as a backbone of the nation. It makes the nation governable. Without the constitution they would be chaos in the nation. Chaos and disorder would be the norm of the day because there will be nothing to regulate the behavior of the people and the government. The constitution has come in to bring law and order and also to make the various countries around the world governable. The constitution being the backbone of the nation holds the nation together and gives power to both the people and the government to make right decisions that will respect other peoples rights. Without this important document there would be a lot of civil unrest in the country because there is no restriction and guidance as to how things should be done. There would be no legal systems for people to run to when they seek justice. Without the constitution people would lived like animals to the detriment of the beautiful earth.
The sovereignty of a state is declared in the constitution. This means that a nation can stand on its own and make independent decisions without interference from other countries. The country is able to stand by their decisions provided that decision is not infringing on human rights per se. If the constitution did not outline the sovereignty of a state, there would have been so much confusion among nations because nations would have been overstepping their boundaries to try and correct what the other is doing and this could have led to wars and a lot of disorder. The constitution sets out the boundaries for the nations relations with other international bodies. The constitution giving power to the three organs of the government also ensures that terrorism and corruption is curbed and tranquility is maintained in a state.