WHAT IS CONSTITUTIONAL LAW?
Constitutional Law is concerned with the role and powers of the institutions of a state and their relationship with private individuals. In the interpretation of a constitution for instance there is the need apart from the facts for the judiciary to consider the general societal norms and values in any given time.
WHAT IS A CONSTITUTION?
The Constitution refers to the body of rules relating to the functions and structure and powers of the organs of the state, their relationship with one another and with the private individual. A constitution has no force than that which the people in authority want to ascribe to it. It may be grouped into two meanings:
Narrower Meaning: It means a document having a special legal sanctity which sets out the framework and the principal functions of the organs of government within the state, and declares the principles by which those organs must operate….Wade And Philips, Constitutional Law, Edition 8, P1.
Wider Meaning: The whole system of government of a country, the collection of rules which establish and regulate or govern the government….Professor K.C Wheare, Modern Constitutions, Oxford Press 1961, P1.
Thomas Paine states in The Rights of Man 1791-1792 (H Collins Ed) Penguin 1969, P 93….A constitution is not an act of government, but of a people constituting a Government, and a Government without a constitution is power without right…A constitution is a thing antecedent to a Government; and a Government is only the creature of the constitution.
Sir Ivor Jennings stated in The Law of the Constitution, Cambridge University Press, 5TH Ed. 1958, P 36…If a constitution only means a written document, then obviously Great Britain has no constitution, since there is no single document considered the fundamental law of the land.
In Ghana as well as other states like USA and Canada, with a written constitution, a written constitution alone cannot ensure smooth administration. It is surrounded by a variety of customary rules and practices, statutes of parliament, judicial decisions. A constitution need not be written, both written and unwritten constitutions contain the features of each other.
WHAT ARE THE ORGANS OF STATE?
Montevideo Convention on the Rights and Duties of States 1933, Article 1…A State as a person of International law should have the following qualities;
1. A permanent population,
2. A defined territory,
3. A Government, and the
4. Capacity to enter into relations with other states.
Government refers to the functions involved in the organization and running of the state’s affairs. These functions are performed by three organs;
The Legislature: This is the Law Making body of the state which in Ghana consists of not less than 140 parliamentarians, Article 93 of the 1992 constitution.
The Executive This is the body responsible for the execution or enforcement of the law, as well as the formulation of policies, consisting of the President, the Vice- President, the Cabinet (a group of most senior ministers who meet regularly to discuss and advise on policies) and other Ministers.
The Judiciary This organ is responsible for settling disputes and interpreting and applying the law, consisting of both the superior and inferior courts and headed by the Chief Justice.
WHAT ARE THE CLASSIFICATIONS OF CONSTITUTIONS?
Written/Unwritten: Whether there exists a single document especially enacted as the constitution of the land. In a written constitution, all the laws are found in a single document or series of documents defining the basic rules of the land. Wheare (Ibid) said that if we investigate modern constitutions, we find that practically without exception, they were drawn up and adopted because people wished to make a fresh start since 1787 when the American constitution was drafted. United Kingdom and New Zealand has an unwritten constitution while USA and Ghana has a written constitution.
Rigid/Flexible: Whether they are in practice easily or often altered or not. Per James Bryce in the American Commonwealth, Oxford (1888)…A Flexible constitution (all the laws) can be amended by the ordinary law making process. Example is the New Zealand and UK. United Kingdom because of the concept of Parliamentary Supremacy where parliament is said to be the supreme law making body and can pass any law, by simple majority vote in parliament on any subject whatsoever. No court, unlike Ghana and USA where the Supreme Courts exercise the power of judicial review, may hold that an Act of Parliament is void as held in the case of EDINBURGH AND DALKEITH RAILWAY V WAUCHOPE.
No parliament may lay down irreversible rules regulating future legislative procedures and no Act of parliament would be declared by a court as inconsistent with procedures established by predecessors. A Rigid constitution can only be amended by some special procedure. Example is USA and Ghana under
Article 290 and 291 of the 1992 Constitution which provides for the amendment of both entrenched and non-entrenched. For entrenched,
• Bill for amendment is provided before parliament,
• Referred by the Speaker to the council of State,
• Gazetted for six months,
• First reading in parliament,
• Submitted to a National Referendum and with at least 40% of persons entitled to vote, voting at the referendum and at least 75% who voted votes in favour of passing the bill.
For the non-entrenched, they are comparatively flexible as it need not go for a referendum and requires a simple approval by parliament after due consideration by the Council of State.
Unitary/Federal: Federal is where governmental powers are shared between, on one hand, the central (Federal) organs and, on one hand the organs of the individual states or provinces or territories. Examples are Canada, Germany, USA and Nigeria. Unitary is where all state power is vested by the constitution in central organs. Ghana has a unitary constitution despite it being divided into 10 regions and 166 administrative districts notwithstanding the provisions of Article 240 that Ghana shall have a system of local government and administration which shall as far as practicable be decentralized, and Parliament also given the power to create District Assemblies which shall have the highest political authority in the districts, and have deliberative, legislative and executive powers. Still Ghana remains a unitary state because no power is given to the local government unit other than that promulgated by Parliament.
Monarchical/Republican: As to how a head of a state is appointed or assume office. Monarchical/Crown Republic where the head of government is hereditary not elected. Examples are UK, Canada, Japan, Morocco, Jordan. Republican where the head of government is elected derived from the Latin res publica, which means ‘public thing’. Examples are USA and Ghana. Where the Head of state of a Republic is also the Head of Government, the system is referred to as a Presidential system.
Parliamentary/Presidential: Parliamentary where the Executive is answerable to Parliament, thus UK, and Presidential where the Executive is not answerable to Parliament, thus Ghana.
One Party/Multiparty: Under the one party, only one political party is recognized and can attain political power. Example is Uganda, China, Cuba and Ghana (1964-1966). In Multiparty, more than one political party exists to attain power. Examples are USA and Ghana. Per Article 3(1) of Ghana’s constitution, Parliament has no power to pass a law establishing a one-party state.
Unicameral/Bicameral: Unicameral Constitution provides for a single law making chamber, example Ghana-Parliament. Bicameral is one where the legislative organ consists of two chambers, example USA-Senate and House of Representative, Nigeria and UK-House of Commons and House of Lords.