LECTURE TWO

• INTRODUCTION TO CONSTITUTIONAL LAW

CONT.
• Legal and Political Constitutions
• Law
• Constitutions
• Forms of Constitutions
– Legal and Political Constitution:
• Law means rules, principles and standards that are
recognised as coming from defined authorities and are
backed by the force of the state.
• Politics comprise all other rules, values, practices and
behaviour governing governmental power and disputes
between different interest which call for collective
action.
 LAW AND CONSTITUTION
• What is Law:
– Rules of Conduct which are enforced by duly
constituted courts of the state.
– The challenges in the definition of Law have led to
the ideological definition of law. Thus there is
definition based on the
• Natural Law School of Thought
• Positivist
• American Realism
 WHAT IS A CONSTITUTION
• The general idea of a Constitution is relatively simple: It
provides the fundamental principles that create the
structure and purposes of a human organization. It has
two purposes: firstly to run the organization efficiently
in the light of its goals and secondly to prevent those in
charge of the organization from abusing their powers.
In the words of Lord Bingham “any constitution,
whether a state, a trade union, a college, a club or
institution seeks to lay down and define the main
offices in which the authority is vested and the powers
may be exercised.” R V SECRETARY OF STATE FOR
FOREIGN AND COMMONWEALTH AFFAIRS EX PARTE
QUARK FISHING LIMITED [2006] at 12
 WHAT IS A CONSTITUTION
• A constitution is a document having special legal
sanctity which sets out the framework and the
principal functions of the organs of government
of a state and declares the principles governing
the operation of those government.
• Often enforced and interpreted by the highest
court of the land.
• Does not contain all the detailed rules upon
which the workings of the institutions depend.
[WADE AND BRADELY]
 WHAT IS A CONSTITUTION
• In modern states a Constitution is an identifiable
document or a group of documents embodying a
selection of the most important rules about the
government of the country.
• Central feature but not the sole feature of the rules
regulating the system of government.
• The text of the Constitution is not to be taken literally.
TUFFUOR V AG – (SPIRIT OF THE LAW) It sets out the
framework of government, indicates how it ought to
operate and makes declarations about the purposes of
the state and society , and the rights and duties of
citizens.
 WHAT IS A CONSTITUTION
• They are the fundamental laws of the land: They
designate the principal organs of government and
invest them with authority. Thus they are the law
behind the law- the legal source of legitimate
authority.
• As a rule they are a higher form of law. This is
because the law set out in the constitution will be
superior to other laws and will not be alterable
except by a specially prescribed procedure.
• SUMMARY:
• There is no more general idea of what a
constitution is than a precise definition of the
legal concept. It is defined by how it is used in
practice. Definitions vary according to the
concerns of a particular definer.
 WHAT IS A CONSTITUTION
• Used in two senses:
• Broad Sense: Used to describe the whole system of
government of a country, the collection of rules which
establish and regulate or govern the government. These
rules are partly legal and partly non legal in the form of
usages, understanding, conventions and customs. Eg:
Britain. Constitution is a composite word that covers the
body of rules, principles, practices, usages, conventions
which relate to a system of government.
• It may also be said to be the rules that relate to the
functions and powers available to carry out public affairs.
• This definition describes the nature of the constitution
• Narrow Sense: It is used to describe the selection of rules, legal and
non legal which is embodied in one document or in a few closely
related documents. E.g. Ghana, USA. Most of the selection of the
rules are mostly legal rules capable of enforcement by the court.
This definition describes the form of the constitution. In the narrow
definition, the emphasis is on;
• The form in which the constitution is presented i.e. a document
• A premium is placed on writing
• Since the French revolution, a constitution, anthem and flag has
been used to identify a people. The question however arises thus;
“if a society doesn’t have any of the above, can it be said to have a
constitution?”
• Historically people found it ideal to use a
constitution in the narrow sense:
– Act of Union of the United Provinces of the
Netherlands 1579
– American Revolution which gave birth to the
American Constitution of 1787 declared “We the
people of the US… do ordain and establish this
Constitution for the United States of America.
– Same applies to Ghana
 Supplement to Constitutions
• The constitution is supplemented by
Acts of parliament, usages and
customs and judicial interpretation.
 Supplement to Constitutions
• Example of judicial interpretation:
• Asare v AG [2003 – 2004]SCGLR 823 on the
interpretation of “unable to act” as President
means when he is physically absent from Ghana.
(Art 61 (11))
• Agyei Twum v Bright Akwetey and AG [2005-
2006]SCGLR 732: Interpreting the Constitution to
include establishing a prima facie case before
constituting a committee to remove the CJ. (Art
146(6))
 CONTENT AND PRACTICE OF
CONSTITUTION
• The student must consider the form and
worth of constitutions especially in Africa. Eg:
Elections in Gabon, DR Congo, Gambia.
• In some countries the Executive arm of
government is treated with more importance,
fear and respect than the constitution
• Question: why is that so?
 CHARACTER OF CONSTITUTIONS
• Supremacy or Superiority Doctrine: They are usually
endowed with a higher status, in some degree, as a
matter of law, than other legal rules in the system of
government
• Usually the amendment takes place through a special
process other than how ordinary laws are amended.
But in some countries the legislature may amend same.
Eg: New Zealand. Ghana applies in both instances.
Chapter 25 of the 1992 Constitution.
• Laws contrary to these rules are declared null and void.
• NMC v Attorney General [2000] SCGLR 1 at 11 when
Acquah JSC ( as he then was) expressed himself in the
following words:
• “But to begin with it is important to remind ourselves that
we are dealing with our national Constitution, not an
ordinary Act of Parliament. It is a document that expresses
our sovereign will and embodies our soul. It creates
authorities and vests certain powers in them. It gives
certain rights to persons as well as bodies of persons, and
imposes obligations as much as it confers privileges and
powers. All these privileges and powers must be exercised
and enforced not only in accordance with the letter, but
also with the spirit, of the Constitution.
 WHY SUPREMACY DOCTRINE
• Firstly in modern times, countries have a
constitution for the simple reason that they
wanted, for some reason, to begin again and so
they put down in writing the main outline or at
least of their proposed system of government.
• Thus people may wish to make a fresh start so far
as the statement of their system of government is
concerned. Eg: US: Uniting to make a new
government, former USSR states came from an
Empire, independent states and countries coming
out of coup d’etat.
• Secondly Constitution is thought of as an
instrument by which government can be
controlled. Constitutions spring from a belief in
limited government.
• However there is a difference as to the extent of
limitation. It might be subject specific like No one
party state (article 55), No abolishment of
chieftaincy (article 270).
• These limitations are often based upon the
objects which the framers of the constitution
wish to safe guard:
Reasons for limits on the Constitution
– They may want to ensure that the Con is not watered
down casually or carelessly or by subterfuge or
implication.
– Want to avoid the light tempering of this doc and any
tempering must be done in a solemn manner with due
notice and deliberation ie conscious amendment.
Rigidity in amendment.
– Doctrine of Separation of Powers and Checks and
Balances
– Rights of the citizenry not to be tempered by the
state.
– Feeling that certain laws should not be made at all.
 CLASSIFCATION OF CON
• Written or Unwritten.: Their focus in this distinction relate to those rules
regulating government mostly rules of law which are written down either
in a constitution or in some Act of Parliament or other legal documents
and those other rules , mainly customs and conventions and usages
regulating the government which have usually not been precisely
formulated and put in writing.

• Thus written constitutions is one contained within a single document or

series of documents, with or without amendments, defining the basic
rules of the state.
• This categorisation is generally considered to be incorrect because there
are no constitutions which are wholly written or unwritten. Typically, some
parts are written and others are not. In this regard KC Wheare opines that
the classification of a constitution into written and unwritten should be
discarded. He states the better distinction is between countries which
have a written constitution and those which have no written constitution.
 CLASSIFICATION OF A CONSTITUTION
• Flexible or Rigid: Classification rest with the method
of amendment. Those amendment which is made
like any ordinary laws or those that is made by way
of a special process. Eg of the former is New Zealand
and the later is in the vast majority like the US. Lord
Bryce in his STUDIES IN HISTORY AND
JURISPRUDENCE came out with this definition.
• The focus of this distinction must be centered on the
degree of rigidity. Thus it is possible to arrange
constitutions in accordance with the degree of
rigidity.
– Reality some rigid constitution are amended
more than the flexible ones: the fact is that
the ease or the frequency with which a
Constitution is amended depends not only on
the legal provisions which prescribe the
method of change but also on the
predominant political and social groups in the
community and the extent to which they are
satisfied with or acquiesce in the organization
and distribution of political power which the
Constitution prescribes.
In the light of these concerns Wheare proposes that
it will be better to use the term flexible or rigid to
distinguish constitutions not according to whether or
not they require for their amendment a special
procedure which is not required for ordinary laws ,
but according to whether they are in practice through
the force of a variety of circumstances , easily and
often altered or not.
Ghana may be classified as hybrid. Chapter 25 of the
1992 Constitution. ( Flexibility or rigidity must be
determined in substance and not in form)
 CLASSIFICATION OF CONSTITUTIONS
• Supreme over Legislature :
• This is a kind of distinction to the effect it
relates to those constitutions that can be
amended by the Legislature and those which
cannot. Thus this constitution is supreme over
legislature.
• Raises issue of special majority.
• Is another form of rigidity over flexible .
• Monarchical or Republican. It looks at the
head of state. If the head of state under a
constitution comes into office according to
hereditary rules it’s monarchical. If it’s
elective, it’s republican. Ghana’s is a
Republican Constitution.
• Modern Monarchs is more like a crowned
republic.
• Presidential or Parliamentary: Classification in terms
of the method by which the powers are distributed
inside government between various organs or
institutions which make up the government , whether
it be a government of or the whole of a country or the
government of a part only.
• This looks at the relations between the executive and
the legislature. If the rules provide that the executive is
answerable to the legislature, it is Parliamentary. If the
rules provide that the executive is not answerable and
controlled by the legislature, then it’s presidential.
• Thus it confirms the principle of separation of
powers.
• The 1992 Constitution is a Presidential
Constitution although the 1969 Con was
Parliamentary system.
• Separation of institutions does not mean
separation of processes
• Unitary or Federal. This looks at the distribution of the
powers of government between the government of the
whole country and any local governments which exercise
authority over parts of the country.
• Federal Constitutions are often rigid. Supremacy of the
Constitution.
• What happens to situations where the local government
has more power than the central government. It is called
“confederation” Before the US Constitution they operated
the Articles of Confederation. If the constitution
establishes one central authority and gives it power, it’s
Unitary. If it establishes a central authority and regional
authorities with arrangements similar to the central
authority, it’s Federal.
• Single Party or Multiparty. It looks at the operation of the
freedom of association in the political arena. If the
constitution in principle allows more than one political
party, it’s a multiparty constitution.
• Diarchical. It’s a constitution in which there is a distribution
of governmental competence along lines other than
regional. E.g. the French constitution allows the president
to pass some laws without recourse to parliament.
• Unicameral or Bicameral. It looks at the structure of the
legislature. If the constitution provides for a single house of
the legislature, it’s unicameral. If it provides for two houses
of parliament, it’s classified as bicameral
 CHARACTERISTICS OF A
CONSTITUTION
• It is a product of the constituent power which must be
external to the constitution i.e. it is made by the people.
This product might be evolving; implying changes may be
effected over time.

• It establishes a state, its divisions and system of

government.

• It is both law and the source of legal power.

• It contains different kind of rules, conventions, practices

 CONTENTS OF A CONSTITUTION
• Constitutions of different countries show that people
differ very much in what they think is necessary for a
Constitution. Some constitutions have few pages
others have several pages.
• A major difference in Content of Constitution is found
between those who regard Constitutions as primarily
and almost exclusively a legal document in which,
therefore, there is a place for rules of law but
practically nothing else and those who think of a
Constitution as a sort of manifesto, a confession of
faith, a statement of ideals, a charter of the land.
• An example is the Ghana Constitution which
contains a few flourish in the preamble but for
most part it relates to the rule of law. Most
Constitution of British influence has this.
• The content is also influenced by the drafters
of the Constitution.
• To some, the Constitution should contain the
very minimum of the legal rules i.e it should
be as short as possible.
• CJ John Marshall of the US and deemed to be a principal
architect of the US Constitution stated that :
• “A constitution to contain an accurate detail of all sub-
divisions of which its great powers will admit, and of all the
means by which they may be carried into execution, would
partake of the prolixity of a legal code, and could scarcely
be embraced by the human mind. It would probably never
be understood by the public. Its nature therefore requires
that only its great outlines should be marked, its important
objects designated and the minor ingredients which
compose those subjects be deduced from the nature of the
objects themselves: McCULLOCH V MARYLAND (4 Wheaton
316) Affirmed in Ghana by the Case of Asare v AG 2015
judgement on the Amendment of the Constitution case.
• Asare v AG: Georgina Wood:
• “Every national Constitution and for that
matter each provision, being suis generis in
character, has what constitutes its own
peculiar “great outlines that should be
marked”, those “important objects” that need
to be designated, as opposed to those that
may properly be categorized as “minor
ingredients” which compose those objects.
• Thus, in constitutional adjudication, in any given
case, a just application of the doctrine requires
first that a distinction be drawn between those
matters which constitute “great outlines” or
“important objects” and those which do not, and
may aptly be described as constituting “minor
ingredients”, and so deducible from the great
outlines or objects. In other words, what
constitute great outlines as opposed to minor
ingredients are issues that merit a case- by- case
determination, based no doubt on the relevant
factors.
• Question: Which of the legal rules should we
leave out
• Depending on the form of government. It is
believed that a Unitary Constitution will be less
bulky than a federal constitution. For federal
there is a need to distinguish the powers of the
central government and the communities. Do you
go listing an exhaustive list for the centre and
leave the rest for the states or the other way
round. What if the same subject can be dealt
with by the Centre and the state?
• Human Rights: To ensure limitations on
government most Con contain declarations of
rights or liberties of the subject which is
intended that the government should
enforce. But should there be restrictions ,
how far should the restrictions go?
• Re Akoto, Re Okine, In re Offences Against
the State (Amendment) Bill, [1940] IR 470 at
pp 481, NPP v IGP Article 31 (10)
• Claw back clauses of rights.
• Rights have evolved from time to time.
• The introduction of declarations of rights into
a constitution with vague terms and with
considerable room for legitimate difference of
opinion, places a difficult responsibility on the
courts.
• Experiences of the People: The formal
definitions (specific details) in a constitution
will depend on the history of the constituent
power.
• Therefore the contents of the constitution can
be a mirror which reflects the experiences of its
people. Constitutions for various societies
therefore do not have the same information.
Preambles are also different. There is however
some basic matters which will be seen in all
constitutions. The preamble to Ghana’s
constitution “In the name of the Almighty
God…” shows that (most of) the people of
Ghana believe in God for instance; note didn’t
say Christ, or Allah.
 Contents of a Constitution
• The ideals and values of the society.
• These will usually be found in the preamble. In Ghana’s
case, it’s in both the preamble and chapter entitled The
Directive Principles of State Policy i.e articles 34 - 41.
• Provisions on the structure and organisation of the
government.
• Provisions on distribution of functions and powers of the
institutions of State
• Provisions about rights and duties of citizens i.e. provisions
which tell us the relationship between the government and
the public and among the government
• Rules for changing or amending the constitution
 Summary
• In summary, there is no pre-ordained stereotype
of an ideal Constitution: The contents of a
constitution may capture:
– Preamble
– Supreme rules of law without opinions, aspirations,
directives and policies
– These rules must be few, general and fundamental.
– Relate to subject which is proper to attempt to
describe and regulate in terms of a rule of law.
– Language should avoid so far as possible the
ambiguous , the emotional and tendentious[biased]
• However the form and content may depend
on
– The forces at work when the con is established
and amended
– Commonsense considerations of practical
convenience
– Precedents available to the politicians and their
advisers who draw up the constitution.
 How do Constitutions Change?
• 1. Through amendment
• 2. Through constitutional review
• 3. Through judicial interpretation
• Marbury v Madison:
• ‘It is emphatically the province and duty of the
judicial department to say what the law is.
Those who apply the rule to particular cases,
must of necessity expound and interpret that
rule. If two laws conflict with each other, the
courts must decide on the operation of each’.
• Per Marshall CJ.