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The Nature of a Constitution - Constitution Watch Content Series
July 04, 2011
Nature of a Constitution
of a country is a set of rules that define the nature and extent
of the country’s government. It is sometimes referred to as
the country’s fundamental or basic law, and usually has supremacy
over all other laws. A constitution establishes the basic institutions
of the State and regulates the executive, legislative and judicial
branches of government and the relationships between those branches;
many modern constitutions also regulate relationships between individuals
and their government, particularly by guaranteeing individuals certain
fundamental human rights.
In this Constitution
Watch we shall examine some of the provisions that can and should
go into a constitution, dealing with them under the following headings:
between individuals and the government
III. Local government
of the constitution
V. Checks and
VI. Other matters
First and foremost,
a country’s constitution must set out how the country is governed,
and must deal with the following institutions:
Executive Branch of Government
must specify who will have executive powers in the State. It must
say, for example, whether the powers should be exercised by a President
or a Prime Minister; and if the powers are to be exercised by two
or more people it must apportion the powers clearly between them
[This is one of the most serious defects of the present Constitution
as amended by the GPA:
the demarcation of powers between the President and the Prime Minister
is so vague that it makes their relationship unworkable.]. A constitution
must also lay down what powers are vested in the Executive and any
limits on the exercise of those powers.
Legislative Branch of Government
must establish the legislative or law-making branch of Government.
If there are to be two or more law-making bodies (for example, a
Senate and a National Assembly) the constitution must indicate the
relationship between them and set out their respective powers. The
constitution must specify if and how other institutions of the State,
including the Executive, are accountable to Parliament. If the legislative
branch is to control taxation, then the constitution must also specify
this [under the present Constitution, taxes cannot be imposed unless
Parliament passes a law authorising their imposition].
[i.e. judges, magistrates and the court system] perform a vital
role in every State, by interpreting laws and resolving disputes.
Hence a constitution must establish the country’s court system
and give the courts sufficient jurisdiction, i.e. power, to carry
out their role. In particular the constitution should make it clear
how far the courts can question the actions of members of the Government
and the validity of laws made by the legislature.
Institutions of Government
to the three main branches of Government, the Executive, the Legislature
and the Judiciary, there are other important institutions of the
Government which should be dealt with in a constitution. Some of
these institutions form part of one or other of the three branches.
For example, in many countries the Government’s functions
are exercised through a Cabinet of Ministers, and in that event
the constitution should specify which Ministers form the Cabinet
and what its functions are.
In the Zimbabwean
context, the security forces [the defence forces and the police
force] will need to be dealt with carefully because they exercise
the coercive powers of the State: that is to say, they compel individuals
to do what the Government wants, and the way they are currently
exercising those powers is controversial. The constitution should
indicate how far the security forces are to be under the control
of the government – how far they are to be controlled by the
President or the Prime Minister or the Cabinet – and whether
Parliament should have a supervisory role over their activities.
Apart from the
security forces, a constitution may set up other institutions such
as commissions to conduct elections, to appoint people to public
offices, to foster human rights, to combat corruption, and so on.
These institutions should be established by the constitution rather
than by ordinary legislation if they need to be independent in order
to exercise their functions properly.
and Election to Governmental Institutions
must indicate how people are appointed or elected to the various
institutions of the State, so that the institutions can continue
to exist beyond the life-time of their first members. In the case
of the Legislature, for example, the constitution should state how
members of Parliament are elected or appointed, though in many countries
the details of the electoral or appointing process are left to be
covered by ordinary legislation.
Between Institutions of Government
must indicate how the different institutions of government function
in relation to each other. For example:
between the Executive and the Legislature
should state whether members of the Executive such as Ministers
are to be members of Parliament. If not, how is the Executive to
influence the laws passed by Parliament [as it must do, in a modern
State]? The constitution should also indicate how far the Executive
should participate in the law-making process: for example, must
Acts of Parliament be assented to by the Head of State?
between the Executive and the Judiciary
how judicial officers are appointed, the constitution will indicate
how far the judiciary is to be independent of the Executive: in
other words, if judges and magistrates are appointed at the discretion
of the Head of State they will be subservient to the Executive,
but if they are appointed by a non-partisan commission they are
likely to be independent. The constitution should also state to
what extent the actions of the Executive can be reviewed by the
between the Legislature and the Judiciary
between the Legislature and the judiciary will be affected by how
judges and magistrates are appointed, and the constitution should
state what powers the courts have to declare laws to be invalid.
Between Individuals and Government
part of every modern constitution is a Declaration or Bill of Rights,
which sets out fundamental human rights which are at least partially
protected against violation by the Government. The nature and extent
of these rights vary from constitution to constitution, but generally
all or most of the fundamental rights that are set out in such international
conventions as the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights should be included.
Most progressive constitutions also have provisions for Social and
Economic Rights set out in the International Covenant Economic,
Social and Cultural Rights.
Local Government Institutions
and circumstances of a country will determine whether, and to what
extent, the country’s constitution should deal with devolution
of power [the transfer of power from central government to provinces,
districts and local authorities]. In Zimbabwe it is essential for
historical reasons that a new constitution should give at least
some powers to provinces, and that urban and rural local authorities
should be given more autonomy.
of the Constitution
constitution must state clearly how it can be amended. Usually a
constitution requires special procedures - a referendum or larger
than ordinary majority in Parliament, for example - which must be
followed before an amendment can be validly made. If a constitution
makes no provision for its amendment then it cannot be amended,
because all the institutions of State are subordinate to the constitution
and they have no inherent power to alter the law under which they
must set some limits on the exercise of power by members of the
different branches of a State’s government. If there are no
such limits the State will tend to be despotic, where the powers
concerned are exercisable by the Executive, or ineffective where
they are exercisable by the Legislature or the Judiciary. This is
the basis of the doctrine of separation of powers.
There is a particular
need for limits and balance in regard to the following:
- The extent
of the powers exercisable by each of the branches of Government.
Power should not be concentrated in the Executive branch because,
as indicated, that will lead to despotism. On the other hand,
the other branches should not be allowed to exceed their legitimate
powers either. If the Legislature has too much power and is able
to pursue divergent policies from the Executive, there is a danger
of government confusion or paralysis. If the courts are over-zealous
in reviewing Executive decisions, there is a danger of the courts
usurping the functions of the Executive; and similarly if the
courts can too readily overturn legislation the courts may themselves
become an unelected Legislature.
- The way
in which powers are exercised. Particularly in the case of the
Executive, decisions should be taken collectively rather than
individually. For example, the power to make decisions should
be vested in the Cabinet rather than in the President or the Prime
Checks and balances
must not be so great as to prevent a government from taking effective
action. There must be co-operation between the different branches
of government if the business of government is to conducted smoothly.
Where a constitution divides governmental powers between different
institutions, those institutions must learn to practise compromise
and common sense. But compromise and common sense are habits of
mind and cannot be embodied in a written constitution.
to balancing the powers of the different institutions of government,
every democratic constitution must try to balance the other conflicting
interests that exist in every State. Some of the interests that
need to be balanced are the following:
versus the State
history, and the history of many other countries, shows that individuals
and vulnerable groups need to be protected against oppression by
their governments. The purpose of a Declaration or Bill of Rights
is to provide this protection, but it mustn’t go too far.
The rights of the majority, who in a democratic State are represented
by the Government, cannot be ignored. Governments must be able to
take reasonable measures to preserve the national interest while
at the same trying to protect minority interests. In other words,
a balance must be struck between general and particular interests.
there are stark differences between the lifestyle enjoyed by members
of the wealthy élite, who wield political and economic power,
and that of the rural and urban poor. The constitution-making process
is directed and controlled by the élite, and there is a danger
that their interests will be reflected in the new constitution to
the detriment of the poor. That tendency must be resisted if the
new constitution is to attain legitimacy, to be regarded as “our”
constitution, by the majority of Zimbabweans. One way to ensure
that the interests of ordinary people are reflected in the constitution
is to protect their social and economic rights in the Declaration
or Bill of Rights.
need for flexibility
system established by a constitution must be flexible enough to
allow institutions to develop over time and to cope with unforeseen
situations. This entails, firstly, that the constitution should
not seek to prescribe exhaustively what should happen in every conceivable
situation; and, secondly, that the procedures for constitutional
amendment should not be so difficult as to prevent amendments when
they become necessary.
Constitution may not reflect the real constitution
One should remember
that the wording of a written constitution very often does not reflect
the true nature of a country’s system of government. In the
United States, for example, procedures have evolved for encouraging
co-operation and compromise between Congress, the legislature, and
the President. These procedures are not mentioned in the constitution.
And if a foreigner who was unfamiliar with the Zimbabwean political
scene read our present Constitution before its latest amendment,
he or she might well have believed that political parties were of
little or no importance in our system of government, because the
Constitution mentioned political parties only once (in section 41(1)(e)),
and then only incidentally.
If a constitution
is not embraced by the people of the country, if it is not regarded
as “our” constitution by the great majority, then it
may lose legitimacy and either be subjected to frequent amendment
by whichever group of politicians is currently in power, or ignored
by a despotic government or else overridden completely in a coup
d’état. To avoid that fate, the constitution must contain
provisions that are acceptable to the majority. This doesn’t
mean that most of the people must agree with everything in the constitution,
only that the constitution as a whole is broadly acceptable. In
addition, the government should make concerted and prolonged efforts
to ensure that everyone is aware of the constitution and its importance
to them. This goes further than informing people of their rights
under the constitution; people must be made aware of their responsibilities
too, and of the way in which the various institutions of government
work and the part they play in the government of the country.
can be compared to a house. A house defines the space within which
its inhabitants conduct their daily lives, and a constitution defines
the way in which the inhabitants of a country conduct their political
affairs. A house may be large or small, and a constitution may be
lengthy or brief; a house and a constitution may be well-organised
or haphazard. It is possible for a family to live happily in a small,
disorganised house or to live miserably in a well-appointed palace;
and it is possible for a nation to live peacefully and contentedly
in a country whose constitution is badly thought out, or to live
in disharmony in a country with a model constitution.
In other words,
a constitution does not determine whether the inhabitants of a country
will be happy and united or discontented and fractious. Our new
constitution, whether it is well or badly drafted, will not itself
bring happiness to Zimbabwe. That will depend on Zimbabweans themselves.
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