How to Make a Constitution law

The idea of having in place a supreme legal order otherwise known as the constitution is of universal popularity and endorsement. Most countries of the world have their constitutions. It is also a popular idea that constitutions are a body of rules and regulation which commands a more special respect than ordinary laws. There are different types of constitution but the type adopted by a country is determined by her structural composition and the system of government practiced by that country. Nigeria, for instance, adopts a federal constitution because of her pluralistic structure.

The focus of this article is to examine how constitutions are made. However, there are preliminary issues to be first dealt with in order to achieve the primary objective.

What is constitution?

Wade & Philips in their book “constitutional law” defined constitution as ‘a document having a special legal sanctity which sets out the frame work and the principal functions of the organs of government of a state and declares the principles governing the operation of those organs”.

Though the above definition rendered by the two acknowledged authorities on constitutional matters captures the essence of a constitution, it suffers a pitfall by defining a constitution merely as a document. There are constitutions that are found in more than a single document. And in fact, some countries’ constitutions are unwritten. The Great Britain and New Zealand are classic examples of countries with unwritten constitutions.

In a nutshell, a constitution is a body of set rules which defines government powers, functions and citizens’ rights and duties in a definite political space. It may be codified in a single document like the United States of America’s constitution or made up of conventions which are contained in different documents as used in Britain. Habeas Corpus and certiorari in the U.K are examples of conventions with constitutional appeals.

Types of Constitution

There are basically 3 types of constitution and these are:

Unitary constitution

Confederal constitution

Federal constitution

Unitary constitution

A unitary constitution is the one that vests supreme legislative power in one authority in a given state. This type is usually adopted in a polity where the people are homogeneous. One authority is recognized and every citizen is subject to it.

Confederal constitution

It is a constitution that vests the regional components with overwhelming legislative powers and makes the central authority weak. This constitutional arrangement makes secession on the part of the component units a viable option. This model is quite unpopular worldwide.

Federal constitution

In this case, the structure of the country is divided into two: regional government and central government. Regional government represents the various states that have come together to form a united country and the central government is the national headquarters of government.

So a federal constitution is one that recognizes the division of a country into two. That is, the regional governments and the central government but each is made independent and autonomous to the other. Legislative powers are also divided into two and for the purpose of sustaining the union, the central government is accorded more powers, while less powers are given to the various states. This constitution is best suitable for countries with cultural diversity.

The Making Of A Constitution

Constitution, unlike other laws, is not to be enacted by the law-makers. The law-makers can amend a constitution. They cannot make it. The most widely acceptable mode of making a constitution is by the people who are to be governed by the same constitution. A Respected Nigerian professor of constitutional law, Ben Nwabueze, says this “A constitution is an act of the people if it is made by them either directly in a referendum…or through…….a constituent assembly…”

A constituent assembly is a body of elected representatives of the people given mandate to make a constitution and nothing more. It is the duty of this body to fashion out a constitution which would reflect the wishes of the people. The assembly has a duty to revert to the people for approval of their assignment in a referendum. A constitution enacted in this fashion is said to be autochthonous, meaning one which derives its force from the people- its subjects.

The sole reason this method of constitutional making is the most acceptable is simply because it promotes the expression of the popular will. The people can identify with the constitution because it is a true reflection of their wishes and aspirations. Constitutions that have endured the world over are products of this procedure.

Conscious of the respect this method of constitutional making commands globally, the drafters of the 1999 Constitution of the Federal Republic of Nigeria inserted the following preamble:

“WE THE PEOPLE of the Federal Republic of Nigeria:

Having firmly and solemnly resolved:

AND TO PROVIDE for a constitution for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the Unity of our people:

DO HEREBY MAKE, ENACT AND GIVE TO OURSELVES the following Constitution:”

No doubt, the preamble well captures how a people’s constitution is made. It is, however, unfortunate that the Nigerian Constitution is essentially a collection of the wishes of the junta in power as at the time the present constitution was made.