SOURCES OF A CONSTITUTION

CONTENTS

• Introduction
• Objectives

3.0      Main Content

• Sources of a Constitutional
• Nature of the Constitutions
• Constitution as a Social Contract

4.0      Conclusion

5.0      Summary

6.0      Tutor-Marked Assignment

7.0      References/Further Readings

INTRODUCTION

In the previous Unit, you learnt about what Constitution is and the development of constitution through the ages from one society to the other. This Unit introduces us to the subject matter of sources of the various constitutions we have in very many parts of the world today as well as analyze the various approaches to determining the sources of a constitution.

OBJECTIVES

At the end of this Unit, you should be able to: identify the sources of a Constitution;

differentiate between the various approaches to constitutional making in various    societies in the world; and

identify the various historical circumstances leading to different sources of a constitution.

MAIN CONTENT

The Sources of a Constitution

The sources of the various provisions found in a constitution are many, such as the past experiences of the country. For instance, the social economic, political, historical, geographical and notable historical documents such as the British Magna Carta of 1215, American Bill of Right statutes passed by parliament, decrees and edicts of military government, the intellectual works of eminent writers, jurists, historians, philosophers, essayists, politicians, and statesmen such as John Locke., A.V. Dicey, and so forth, case law or judicial precedents, customs and way of life of the people, rules and conventions guiding human behaviour, the constitutions of other countries, the deliberations of constitutional conferences or Constituent Assemblies which may draft the constitution of the given country, rules of international law and so forth are important sources to draw from when writing a constitution for a country.

The Nature of the Constitution 

The nature of a constitution is determined essentially by the source of its authority i.e. whether or not it is an original act of people, and, secondly by the justiciability of its provisions i.e. whether it is enforceable in the court or merely a political charter of government un-amenable to  judicial enforcement.

A Constitution whether written or unwritten, rigid or flexible, unitary or federal etc. has two natures:

1. It is an expression of the will or desires of the people who make up the state or country
2. It is a social contract between the government as an entity and the people on the one hand. It is a contract between those who hold public offices and the people on the second hand, and it is also a social contract between and among the various ethnic peoples who make up a state or country on the third hand.

A constitution is an expression of the will of the people of a country or given political unit. The constitution may expressly spell out the following:

1. The desire of the various multi-ethnic people or race, to live together as one people and the legal basis on which they want to live together in such given political
2. The ideas and fundamental objectives and directive principles of state policy they want to lead their
3. Public revenues and the control of the public funds of the country or
4. The type and structure of government the people want at the various levels of government, their functions, powers and limits thereto.
5. The establishment   of    armed    forces   and   their   traditional, constitutional or professional roles
6. The framework, function and powers of the public service or public institutions and
7. The internal structure of the country, political institutions and the functions and powers they want the government to exercise at the various levels of government.

Constitution as a Social Contract

A constitution is a social contract between the people and government The second nature of a constitution is that it is a contract.

A constitution is a Legal Contract between the people and government containing legal rights which have force of law and are enforceable.

A Constitution is the pre-agreed contract and supreme document defining and regulating the relationship between the people and the government and its terms are binding on all persons and authorities in the country. A constitution guarantees rights and also attracts obligation or duties to the:

1. Individual and
2. The government or public officers and authorities on the other hand.

SELF-ASSESSMENT EXERCISE 1

Do you agree with the saying that a Constitution is a Social Contract between the people and government? Discuss.

CONCLUSION

You have learned about the relationship between a constitution and the people. You have learned the way in which the people should be involved to make the Constitution; valid and enforceable and the central nature of a Constitution, the purpose which it must serve and the constitution as the express will of the people.

SUMMARY

In this Unit, you have learnt that there are five different types of Constitution but there is supposed to be an inherent nature which is determined by the source of the authority.

TUTOR-MARKED ASSIGNMENT

Critically examine whether the 1999 Nigeria Constitution is an express will of the Nigeria people.

REFERENCES/FURTHER READING

Justus A. Sokefun (ed). Issues in Constitutional Law and Practise in Nigeria: Honour of Dr Onagoruwa.

K.M. Mowoe (2002). Constitutional Law in Nigeria.

Prof. Ben Nwabueze(1982). Presidential Constitution of Nigeria The 1999 Constitution of Nigeria