❖ Meaning of Constitutional Law
Professor D C Yardley in his book defines constitutional law rather simply as “that law which is concerned with the Constitution of the country.”
Another author defines constitutional law in a bid to describe the constitutional law practice of the
United Kingdom in these words: ‘Constitutional law can be defined as a body of rules, convention and practices which describes, regulate or qualify the organization and operations of government in the United kingdom
❖ Constitutional Law Differentiated From Administrative Law
constitutional law is mainly concerned with the structure of the primary organs of government, whereas administrative law is concerned with the work of official agencies in providing services and in regulating the activities of citizens.”
❖ Definition of Constitution
A constitution can be described as a simple document having a special legal sanctity which sets out the framework and the principal functions of the organs of government within the state.
❖ TYPES OF CONSTITUTIONS AND THEIR COMPARISON
All these categories are combinable in a particular system of government. So
(a) Written and Unwritten Constitution
▪ Written Constitution can be described as one in which is found in one or more than one legal document duly enacted in the form of laws.
▪ The constitution of Nigeria, India, and United States to mention just three, for example, are all written constitutions.
▪ Modern written constitutions owe their origin to the charters of liberty granted by the Kings in middle Ages.
▪ But the first written constitution framed by a representative constituent assembly was that of the United States of America.
▪ Unwritten Constitution
▪ It consists of customs, conventions, traditions, and some written laws bearing different dates. It is unsystematic, indefinite and un-precise.
▪ The constitution of England is a classical example of an unwritten constitution.
(b) Rigid and Flexible Constitution
is rigid definitely refers to the difficulty of its amendment process as may be stipulated by the constitution.
▪ Both the Tanzania and the American constitutions are good examples of rigid constitutions.
▪ The Swiss constitution is still more rigid. An amendment whether proposed by the Federal Assembly or through initiative needs to be approved by the Cantons and the electorate
▪ Flexible Constitution
is one which can easily be amended by perhaps an ordinary legislative process by the ordinary resolution.
Both constitutional laws and an ordinary law are treated alike since all constitutional amendments can be made by a simple majority of the legislature.
The constitution of England is a typical example of a flexible constitution.
(c) Civil and Military Constitution
is one which exists in a democratic setting whereby the tenets of fundamental rights, ideals of democracy are enshrined.
▪ A civil constitution is characterized by the element of freedom, will, representation and participation.
▪ Military Constitution
is a document superimposed on a country for the purpose of ruling or controlling the governmental affairs without peoples input.
▪ (d) Unitary and Federal Constitutions
is one which defines a centralized system of government without constitutional friction between the national and regional government. It promotes the spirit of oneness among the people.
▪ It usually a flexible constitution, small and simple to operate
▪ Federal Constitution
is a document that provide for system of government between a government at the centre and other component states with division of powers.
(e) Monarchical and Republican Constitutions
▪ Monarchical Constitution
is a constitution where the King or Queen in the head of government. The government may be presidential or republican government.
▪ Republican Constitution
is a document in which the officials of government are elected as representatives of the people
▪ The United States of America is also a vivid example of a state where republican constitution is used to run the affairs of government.
(f) Presidential and Parliamentary Constitutions
is a government where all executive powers are vested in a president who is the head of state and head of government.
The United States of America, Nigeria, Ghana, Kenya and South Africa are examples of countries operating a presidential system of government.
▪ Parliamentary System of Government
is a government where all the executive powers of government are vested in a Prime Minister who is the head of government and head of the majority party
▪ The United Kingdom is the origin and home of this system of government. Other countries operating a parliamentary system of government include: Canada, Jamaica, Israel, India, Australia, Lesotho, Ethiopia and so on.
❖ THE DOCTRINE OF SEPARATION OF POWER
1. Introduction
2. Origin of the Doctrine of separation of power
Aristotle in his book (“The Politics”) proclaimed that: There are three elements in each constitution in respect
Aristotle believed that any single form of government was unstable leading to a permanent cycle of disasters.
3. Definition of separation of powers
separation of powers’ is ‘one of the most confusing in the vocabulary of political and constitutional
a) Traditional (Classical) approach
The traditional views are presented by Montesquieu who vigorously advocated for a “strict or pure or total or complete or absolute”
❖ Montesquieu’s strict doctrine (tripartite system).
▪ In every government there are three sorts of power i.e. legislature, executive and judiciary. The executive, makes peace or war, send or receives embassies, establishes the public security and provides against invasions.
The Doctrine of Separation of powers includes the following distinct but overlapping aspects;
▪ Institutional separation of powers: (a tripartite separation of powers) – the need to have three major institutions or organs in a state i.e. Legislature, Executive and Judiciary.
▪ Functional separation of powers: state power/functions must be vested and exercised by three separate institutions or organs i.e. law making, enforcement and interpretation.
▪ Separation of personnel: (each organ with own personnel) – no person should be a member of more than one organ.
▪ Limitation of appointing powers: state organs should not appoint or elect members for each other.
❖ Application of the Doctrine of Separation of Powers in the United Republic of
Tanzania
▪ The Constitution of the United Republic of Tanzania (1977) represents a contemporary approach in constitutional doctrine of separation of powers.
▪ IMPORTANCE OF THE DOCTRINE OF SEPARATION OF POWERS
▪ It emphasizes the need for a State to have strong independent institutions in order to check arbitrary rule by the Executive.
▪ The doctrine provides a yardstick against which constitutional proposals can be assessed in order to determine whether or not there will be adequate checks and balances within the governmental system to ensure that individual rights are protected.
▪ The functions of the government are vast and varied. It is therefore necessary to entrust these functions to specific organs, so that the responsibility for performing these functions may be effectively fixed.
▪ Constitutions which completely ignore the doctrine are usually bad ones, one of the branches of government will be found to overshadow the others or liable to do so.
▪ Separation of powers according to Montesquieu is the best guarantee of the liberty of the people.
▪ Separation of power promotes efficiency in the administration.
▪ Separations of powers prevent absolutism (as in monarchies or dictatorships where all branches are concentrated in a single authority) or corruption arising from the opportunities that unchecked power offers.
▪ It is considered as one of the pillars of democratic government.
❖ INGREDIENTS OF THE CONSTITUTION OR WHAT DOES CONSTITUTION CONTAIN
1. Preamble
▪ Is an introductory and expression statement in a document that explains the document's purpose and underlying philosophy, when applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute.
2. Bill of rights
▪ It limits the powers which are possessed by the government, the constitution gives enough power to govern but should not abuse its power, the bill of right are fundamental freedom of right. Article 12 - 24 of Tanzania Constitution.
3. A chart of the state system
▪ Here we are referring to organization chart of the state and the public authority is distributed e.g;- President, vice president, prime minister and the cabinet. Article 33 - 61 of Tanzania constitution.
4. An amendment provision
▪ Is a formal or official change made to a law, contract, constitution, or other legal document. It is based on the verb to amend, which means to change. Amendments can add, remove, or update parts of these agreements. They are often used when it is better to change the document than to write a new one. Constitution should provide how should be amended, if the constitution cannot be amended it will lead to revolution.
❖ RULE OF LAW
▪ Meaning
is the legal principle that law should govern a nation.
▪ Supremacy of the law- The First meaning of the Rule of Law is that 'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law
Article.107B. Independence of the Judiciary, in exercising the powers of dispensing justice, all courts shall have freedom and shall be required only to observe the provisions of the Constitution and those of the laws of the land.
▪ Equality before the law-
The Second meaning of the Rule of Law is that no man is above law.
Article.13.-Equality before the law (1) all persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law.
❖ HISTORICAL BACKGROUND OF RULE OF LAW
▪ One dominant theme in the story of Western civilization in the last 500 years has been the struggle for liberty and rights against absolutism in its several forms, including the absolutism of the state and its use of law. Magna Carta and its later confirmation expressed the principle that justice according to law was due both to the ruler and to other classes
▪ Dicey’s exposition of the Rule of Law Dicey gave to the rule of law three meanings:
▪ (1) The absolute supremacy on predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitraries, of prerogative, or even of wide discretionary authority on the part of the Government….; a man may with us be punished for a breach of law, but he can be punished for nothing else.
▪ 2. Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. This implies that no one was above the law;
that officials like private citizens were under a duty to obey the same law; and that there were no administrative courts to decide claims by citizens against the state or its officials.
▪ 3. That with us the law of the constitution, the rules which in foreign countries naturally form part of the constitutional code, are not the source but the sequence of the Rights of individuals, as defined and enforced by the courts.
❖ DEMOCRACY
▪ Is a system of government by the whole population or all the eligible (allowed) members of a state, typically through elected representatives, Article 3.
▪ Forms or Types Of Democracy
1. Representative democracy (also indirect democracy) - is a form of government founded on the principle of elected individuals representing the people, as opposed to autocracy and direct democracy.
2. Participatory democracy-This means institution or Individual participation by citizens in political decisions and policies that affect their lives, especially directly rather than through elected representatives. This form of democracy is important
3. Direct democracy, classically termed pure democracy, This is the form of democracy done through demonstration or referendum where by these people they lack representative as well as participative democracy
Principles of democracy
1. The accountability
2. Responsiveness- 53
3. The transparency
❖ ELECTORAL SYSTEM
There shall be an Electoral Commission of the United Republic which shall consist of the following members to be appointed by the President: (a) a Chairman who shall be a Judge of the High Court or a Justice of the Court of Appeal, who shall be a person with qualifications to be an advocate and has held those qualifications for a period of not less than fifteen years; (b) a Vice-Chairman who shall be a person who holds, had held or is capable of holding an office of Judge of the High Court or a Justice of the Court of Appeal; (c) other members to be specified by a law enacted by Parliament.
Electoral systems can be divided into three general types:
1. Plurality electoral systems
2. Majority electoral systems
3. Proportional representation
▪ Modern constitutionalism
It is the document which indicates how the state power should be exercised and also nominative that state out of value that should upheld the governing process.
AMERICAN CONSTITUTIONALISM
▪ American constitutionalism has been defined as a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from the people, and is limited by a body of fundamental law.
▪ Characteristics of American constitutionalism
1. The separation of power
2. Federal division of power
3. Constitutional supremacy
4. Bill of right
5. Judiciary review.
1Principles of democracyRepresentative democracy (also indirect democracy) - is a form of government founded on the principle of elected individuals representing the people, as opposed to autocracy. An amendment provision
▪ Is a formal or official change made to a law, contract, constitution, or other legal document. It is based on the verb to amend, which means to change. Amendments can add, remove, or update parts of these agreements. They are often used when it is better to change the document than to write a new one. Constitution should provide how should be ae constitutiod it will lead to revolution.
PreambleIt emphasizes the need for a State to have Executive.
▪ The doctrine provides a yardstick against which constitutional proposals can be assessed in order to determine whether or not there will be adequate checks and balances within the governmental system to ensure that individual rights are protected.
▪ The functions of the government are vast and varied. It is therefore necessary to entrust these functions to specific organs, so that the responsibility for performing these functions may be effectively fixed.
▪ Constitutions which completely ignore the doctrine are usually bad ones, one of the branches of government will be found to overshadow the others or liable to do so.
▪ Separation of powers according to Montesquieu is the best guarantee of the liberty of the people.
▪ Separation of power promotes efficiency in the administration.
▪ Separations of powers prevent absolutism (as in monarchies or dictatorships where all branches are concentrated in a single authority) or corruption arising from the opportunities that unchecked power offers.
▪ It is considered as one of the pillars of democratic government.
Doctrine of Separation of powers includes the following distinct but overlapping aspects;
▪ Institutional separation of powers: (a tripartite separation of powers) – the need to have three major institutions or organs in a state i.e. Legislature, Executive and Judiciary.
▪ Functional separation of powers: state power/functions must be vested and exercised by three separate institutions or organs i.e. law making, enforcement and interpretation.
▪ Separation of personnel: (each organ with own personnel) – no person should be a member of more than one organ.
▪ Limitation of appointing powers: state orga