CCH 302: Constitution and Governance Lecture Guide & Notes (Dr T.

Otieno Juma, UOK)

PART I: Key Constitutional Terminologies and Concepts in Governance (Adopted From –

International IDEA: Constitution Building Processes Programme & Other Sources)

Note: This package PART I is only meant for clarification of the terminologies and concepts useful
for Constitution and Governance lessons. This cannot form a basis for Course Evaluation.

Constitution:

What is a Constitution?
i. A constitution determines how a state is run. A constitution is the set of fundamental
rules and practices about the composition, functions and powers of the principal
institutions of the state (the legislature, the executive, and the judiciary).
ii. A constitution is the fundamental law, the basic law, of a country. The constitution
determines the fundamental political principles of the government, rules of procedure of
that government, rights and obligations of the citizenry and also sets forth methods to
ensure accountability of governmental branches.
iii. A constitution also governs the relationship between the state and individuals, as it
enshrines individual rights and civil liberties, such as freedom of expression and the
right to a fair trial. The constitution of a country is the ultimate source of legal
authority; this means that ordinary law must comply with the constitution and all
government actions must conform to the constitution.

Constitutional: Power or action in compliance with the provision of the constitution; related to
the constitution.

Constitutional bodies: Entities created by the constitution for specified tasks.

Constitutional convention: A Constitutional Convention is yet another mechanism/body that

can be used during a constitution building process. There is a distinction between what is
called a ‘general constitutional convention’ and an ‘unlimited constitutional convention’. Among
the two, a general Constitutional Convention is employed when a country that has never before
had or written a constitution embarks on this process, or if the country in question wishes to
revise the entire old constitution. An unlimited Constitutional Convention aims to revise an
existing constitution to the extent that it deems to be proper, whereas a limited Constitutional
Convention only concerns itself with reforming, revising and/or make amendments to part of
the constitution that the existing constitution allows for it to reform. Constitutional
conventions have also been used by separate geographical districts in federal states in order to
create, replace or revise their own constitutions.

Constitutional Council: A special body of persons created by the constitution for the
appointment of authorities; constitutional bodies.

Constitutional Entrenchment of Fundamental Rights: The incorporation of fundamental

rights in the constitution. Amendments to these constitutional provisions normally require
more than a simple, legislative majority.61 Constitutional Monarchy: Monarchy which derives
its powers from the constitution and not from divine right (also implies that the power of the
monarchy is limited).

Constitutional order: Constitutional orders are political orders organized around agreed-upon
legal and political institutions that operate to allocate rights and limit the exercise of power. In

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CCH 302: Constitution and Governance Lecture Guide & Notes (Dr T. Otieno Juma, UOK)

a constitutional order, power is “tamed” by making it less consequential. The stakes in political
struggles are reduced by the creation of institutionalized processes of participation and
decision making that specifies rules, rights, and limits power holders.

Constitutionalism: A practice or philosophy of adherence to constitutional principles involving

limits on the power of the government put by those constitutional principles and words of the
constitution.

Constitutionality: Conformity with the constitution. Constitutionality is a status of legality

given to a law, statue, act, rules, procedures or administrative actions depending upon their
conformity to constitutional provisions.

Democracy: A system of government by and for the people. Literally means ‘rule by the people’.
“Democracy” is inherently difficult to define and many scholars have attempted to provide a
useful and broadly accepted definition. However, at a minimum democracy requires: 1)
universal, adult suffrage; 2) recurring, free, competitive, and fair elections; 3) more than one
serious political party; and 4) alternative sources of information.

Direct Democracy: A form of governance in which direct participation of ordinary citizens in

decision-making on specific issues of national or regional importance is assured. Use of
referendums to validate important decisions in representative democracies or plebiscites in a
presidential system of government is a form of direct democracy. Its use is popular in
Switzerland.

Consensual democracy: The type of democracy that prevents the winners (majority party)
from taking all power and provides the minorities scope for power-sharing in governance. In
this system most decisions are made on the basis of the participation and consent of most
parties concerned rather than on the will of the majority. Switzerland has practiced consensual
democracy.

Consociational democracy: A system of governance based on recognized national ethnic,

linguistic or religious communities, which provides for some autonomy for these communities
as well as for some joint decision-making, including the right of each community to veto
unacceptable decisions. This system is often established formally or by convention and not
fully recognized constitutionally. Both unitary and federal governments can have
consociational features.

Participatory democracy: Democracy that does not limit citizen’s participations to elections
but creates opportunities for citizens’ direct participation in decision making without the
intermediary of elected or appointed representatives.

Sovereignty: The principle that the state exercises absolute power over its territory and
population. It also includes the freedom of a state to determine its foreign relations with other
states and be a member of international organizations.

Sovereign: A person with the highest power in a country, especially a king or a queen (for
present time commonly used for Presidents/Prime Ministers).

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CCH 302: Constitution and Governance Lecture Guide & Notes (Dr T. Otieno Juma, UOK)

Legitimacy: The state of quality of being accepted as legitimate, lawful or right. It can refer to a
system being accepted as legitimate by the population, or have a narrow meaning of legal
legitimacy as recognized by the courts.

Republic: A state in which power is held by the people and their elected representatives and
which has an elected president as head of state rather than a monarch.

Administration: The function of a political state in exercising its governmental duties.

Devolution: A process by which administrative, executive, legislative and fiscal powers are
given to constituent units. Devolution differs from federalism in that the devolved powers may
be repealed, that is taken back to the centre by the central government by ordinary legislation.
It is different from decentralization in the sense that devolution involves transfer of political
powers whereas decentralization is usually the transfer of administrative or fiscal powers.

Decentralization: A process of governance where constituent units exercise administrative,

legislative and/or fiscal authority. The process is also defined in the transfer of authority from
central government to lower levels of government in political, administrative and territorial
hierarchy.72 Delegated Jurisdiction and Responsibilities: Governmental powers
constitutionally assigned to one level of government which has transferred the authority to
another level of government, subject to the condition that the transfer is revocable by that
delegating authority.

Federalism: Federalism refers to a broad category of political systems in which, by contract

with the single central source of political and legal authority in unitary systems, there are two
or more constitutionally established orders of government, each directly elected, and each
order having some autonomy from the other in terms of the powers assigned to it.

Delegated Legislation: Legislation promulgated by an authority on the basis of power

conferred on that body by the legislative authority having competence over the subject matter.
For instance, legislature normally delegates authority to the executive to make regulations or
other detailed laws, usually within the framework of a larger piece of legislation. As well, some
federations permit delegated legislation between orders of government.

Delegated Powers: Powers that are assigned by one level of government to another on a
revocable basis.

Separation of powers: Refers to the allocation of powers amongst the branches of a

government (whether federal or constituent unit). In the United States of America and Latin
American federations, the term “separation of powers” applies to the separation in the federal
government between the Presidency, Supreme Court and Congress. It relates to the concept of
checks and balances.

Executive/Executive Power: Having power to put decisions, laws, etc. into effect (power
conferred on the executive).

Rule of law: It is a doctrine that holds that no individual is above the law and everyone
regardless of their social status is equal before law. It is a condition in which every member of
society including its ruler accepts the authority of the law. This carries the implication that this
applies equally to all levels of government.

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CCH 302: Constitution and Governance Lecture Guide & Notes (Dr T. Otieno Juma, UOK)

Bicameral: Having two branches, chambers, or houses, as a legislative body.

Unicameral: Legislature composed of one chamber.

Bill: Draft law presented to the legislature for enactment.

Bill of Rights: Fundamental rights and privileges guaranteed to a people against violation by
the government incorporated in the constitution.

Extra constitutional: Something that is not provided for in the constitution, for example an
extra-constitutional power. Extra-constitutional does not necessarily mean unconstitutional,
that is, in violation of the constitution.

Extra judicial: A measure undertaken without proper judicial authorization and contrary to
the law. For example, an extra-judicial execution.

Equality: The state of being equal in status and rights.

Equal representation: May apply to individuals or groups. Representation proportional to the

size of groups is essentially based on equal representation for individuals (representation by
population). It can also apply to electoral systems, where political parties are given
representation proportional to their share of the popular vote (proportional representation).
Finally, in some federations, the principle is applied to groups and particularly to constituent
units where each unit gets equal representation of some kind in some federal institutions, most
notably the upper house of the central legislature.

Equalization: Redistribution of revenues within a federation to provide a minimum equitable

standard of resources for constituent units and thus to ensure citizens have a comparable level
of government services regardless of their place of residence. It is typically based on a formula
that takes into account either/or both the recipient government’s own source revenue capacity
and/or its expenditure requirements.

Ethnicity: A term used to identify specific communities on the basis of traditions, culture or
language.

Ethnic group: An ethnic group (also refers to a nation), or ethnic community that can be
defined as a large or small group of people, in either traditional or advanced societies, who are
united by a common inherited culture (including language, music, food, dress, and customs
and practices), racial similarity, common religion, and belief in common history and ancestry
and who exhibit a strong physiological sentiment of belonging to the group.

Multiethnic: Country or society characterized by having many ethnic groups.

Multinational state: A state which incorporates more than one nation. Some federations are
composed of a single nation but others are multinational. A nation-state is a state composed of
one nation.

Fundamental: A basic rule or principle; an essential part.

Principles: Guiding rules or a system of moral behaviour.

De facto: Holding certain position or state of being not necessarily resulting from legal right

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CCH 302: Constitution and Governance Lecture Guide & Notes (Dr T. Otieno Juma, UOK)

De jure: Holding certain position or state of being due to rightful entitlement/claim accorded
by existing law.

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Annexture

Corruption: Use of bribery and other practices that tend to pervert behaviour, especially of
officials.

Article: The main element of a constitution. A separate clause or provision of a statue

(separate clauses in the constitution).

Accountability: A requirement to offer explanation for an action; responsibility for one’s action
(implies that there is someone to whom one is responsible).

ad hoc (which means literally 'to that' and refers to a body or a rule for a particular occasion,
like an ad hoc committee set up for a particular matter);

habeas corpus (which means 'may you have the body' and refers to a specific legal procedure
to investigate a suggestion that a person is detained against the law);

nolle prosequi (which means 'do not prosecute' and is a special process in some countries
under which prosecutions for criminal cases are stopped);

quo warranto (which means 'by what warrant or permission' and refers to a specific legal
procedure in the Supreme Court brought into Nepal from India, a procedure abolished in the
mid-twentieth century in England).

PART I: Types and Sources of Constitutions

TYPES OF Constitutions:

Basically there are TWO major types;

(1) A written constitution - is written in the form of a book or document. A written

constitution is a made and enacted by a constituent assembly of the people.

Written constitution is a type of document or documents created in the form of laws.

Written constitutions are usually very precise and systematic. The creation of this
constitution is usually defined as a deliberate effort of the people. This legal body is
elected to be the main legal document for the specific period of history. Most countries
have a written constitution, like the USA, India, Russia, France, Germany, Nigeria, and
so on.

(2) An Unwritten constitution is not written in such a form. Constitute ethical norms
generally accepted and adopted from beliefs and practice of culture.

The unwritten constitution is a legal body where the principles have never been enacted
as laws. It consists of various customs, principles or traditions of a country. It does not
have a specific date of creation and is not clear or precise in any way. Unwritten

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CCH 302: Constitution and Governance Lecture Guide & Notes (Dr T. Otieno Juma, UOK)

constitutions are usually a result of the historical development of a country. One of the
classical examples is the English Constitution.

Types of Constitution in a Broader Sense;

1. Flexible and Rigid Constitution/Flexible and Inflexible (when viewed from

applications point of view.

These generally refer to how easy you can change some clauses of the constitution.
Codified constitutions have a strict set of rules for when it comes to constitution
changes. One of the examples of inflexible constitutions is the USA constitution. The
specificity of this constitution makes it very inflexible for changes. At the same time, the
British Constitution has constantly been changing since the 13th century.

2. Unitary and Federal Constitution - Basis is Power and Resource Allocation

capability.

federal constitution provides the ability to create the governments at the state level.
These governments can also have their constitutions. Nevertheless, these should be
connected and controlled by the central government. The Unitary Constitution does not
accept any governmental power beyond the central government. Still, it can also provide
the devolution of power to parts of a country on the local level.

3. Democratic constitution - The process of enactment and it’s

relationship with the masses, being an instrument of the practice of this system.
4. Republican and Monarchical constitution - Representation vs
Hereditary/Dynastic system of attainment of sovereigns.

Monarchy Constitution is one of the various types of constitution that provides no head
of the state power to citizens of a country unless they are related to a monarch. This
type of constitution may proclaim an endless political power to a monarch or limit
his/her political power.

The Republican Constitution is the most popular constitution today. It proclaims rights
and freedoms for all citizens. At the same time, it provides the ability to choose political
leaders or be chosen as a political leader.

5. Presidential and Parliamentary constitution - Those that entrench

Presidentialism or Parliamentarism.

Presidential and Parliamentary constitutions depends on how a government operates.

The presidential constitution places power in the hands of a president. The
parliamentary constitution gives power to a parliament. These types of constitution
primarily effect the head of the executive and the head of state branches.

The presidential constitution usually dictates that the head of the state and the head of
the executive branch is a president. He/she is not a part of any political party. On the
contrary, the parliamentary constitution dictates that the head of the state can be a
prime minister. He/she can also be a part of a political party.

6. Codified and Uncodified (in reference to documentation)

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CCH 302: Constitution and Governance Lecture Guide & Notes (Dr T. Otieno Juma, UOK)

Codified and uncodified constitutions are simply another name for written and
unwritten constitutions. The codified constitution is a set of laws created at a specific
period of time. At the same time, uncodified constitution type is based on customs and
traditions. Nevertheless, there are no completely codified and uncodified constitutions.

7. Monist and Dualist Constitutions – m o n i s t constitution, once an

international treaty is ratified, it becomes automatically part of the domestic legal
system. The N e t h e r l a n d s has a monist constitution;

Art. 93: Provisions of treaties and of resolutions by international institutions which may be binding on
all persons by virtue of their contents shall become binding after they have been published. The
Constitution of the Kingdom of the Netherlands.
D u a l i s t constitution, a national legal instrument, that is a statute, is required
for international law to take legal effect within the domestic legal system. The UK
d u a l i s t s y s t e m has eloquently been described by Lord Hoffmann:
“international treaties do not form part of English law … Parliament may pass a law which mirrors the
terms of the treaty and in that sense incorporates the treaty into English law. But… it is not the
[international] treaty but the [domestic] statute which forms part of English law.”

8. Political and Legal Types of Constitution

The political constitution is connected with people who hold the political power in a
country. The political constitution is based on the concept of majoritarianism. It means
that the elected majority can enact laws that will affect the electorate. The political
constitution is flexible and changeable. Legal type of constitution is heavily scripted.
One of the main proclamation of this Constitution is the Supreme Court. This legislative
body is prescribed to make any changes of the constitution possible. This body also
controls and monitor the process of constitutional changes.

The characteristics of a good constitution:

 Enabling Adaptability
 Enhancing Responsibility and accountability
 Promoting Separation of powers of the government
 Enable Representation of the people in government (Recognizing peoples sovereignty as
propounded by R2P concept)
 Being Comprehensive
 Protection of the fundamental human rights of citizens
 Meet Clarity Test