CONCEPTUAL ANALYSIS AND CLASSIFICATION OF CONSTITUTIONS

IN THE CONTEXT CONSTITUTIONAL LAW*

Meaning of Constitutional Law

In every society, constitutional law appears to be the overriding

subject matter of law governing the established governmental

institutions, public persons and officer as well as individual

citizen vis-a-vis his role to the development of that society. In

answering the questions ‘what is constitutional law?’, Professor

D C Yardley in his book1 defines2 constitutional law rather

simply as “that law which is concerned with the Constitution of

the country.” Yardley further elaborate on the general

definition. He writes:3

“The constitution of any country must comprise the

fundamental structure and organization of that country, and

that therefore constitutional law is its fundamental, its

basic, essential law, whether it be civil, criminal, public

or private together with those rules of conduct laid down to

govern the exercise of state power by the official organs of

the State.”

Another author defines constitutional law in a bid to describe

the constitutional law practice of the United Kingdom in these

words:1*Akin Olawale Oluwadayisi LL.B(Akungba), LL.M (Ilorin), B.L.,ACIArb.,Lecturer, Department of Commercial Law, Adekunle Ajasin University, Akungba-Akoko, Ondo State; E-mail: akinben66@yahoo.com; 2347038211889;https://adekunleaajasinuuniversityy.academia.edu/AkinOluwadayisi British Constitutional Law (7th ed) Butterworth’s, London.2 Ibid.p. 33 Ibid. p. 4.

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‘Constitutional law can be defined as a body of rules,

convention and practices which describes, regulate or qualify

the organization and operations of government in the United

kingdom and also includes the institutions and offices

comprising the government and doctrines and principles which

influence the constitutional practices.’4

This definition is from the perspective of a positivist. On the

other hand, constitutional law is rather the aspect of law that

define how the constitution itself is shaped by judicial

pronouncement and interpretation as well as practice of the

constitution.5 In another similar view expressed by Austin, the

positivist, he said:‘It is the positive morality or the compound of positive morality

and positive laws which fixes the constitution or structure of the

supreme government which determines the character of the person or

the respective characters of the persons in whom, for the time

being the sovereignty shall reside’.6

Yardley referred to the definition of “Constitutional Law” by

Hood Phillips, namely:7’the system of laws, customs and

conventions which define the composition and powers of organs of

the State and regulate the relations of the various State organs

4 Corlin Turpin, British Government and the Constitution: text, Cases and Materials, pp.3-4.5 See the opinion of Salmond referred by Glanville Williams, Jurisprudence,Eastern Press Ltd of London & Reading, 1957, 11th ed. Pp.100-102.6 HLA Hart, The Province of Jurisprudence Determined, 1954, pp.258-259 cited by KehindeMowoe, Constitutional Law in Nigeria, Vol. One, 2003, Malthouse Press, Lagos at p.1

7 Hood Phillips, Constitutional and Administrative Law (7th ed) at p 5.

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to one another and to the private citizen.’8 After examining the

issue of what constitutes constitutional law, Yardley concludes

that it consists of: the law governing the composition of the

national legislature and legislative powers; the composition and

functions of the central government; the composition and powers

of any subordinate or devolved legislature or executive within

the UK; the hierarchy and status of courts of law; the limits of

personal liberty and the rights of the individuals; citizenship

and status of aliens; status of certain national institutions

such as the Armed Forces and the Church; and the relations

between the central and local governments.

It is interesting to note that other text writers such as Wade

and Bradley:9 define

constitutional Law in the same vein as Yardley. The authors

define constitutional law as:10

“That part of the law which relates to the system of government of

the country. It is more useful to define constitutional law as

meaning those laws which regulate the structure of the principal

organs of government and their relationship with each other and to

the citizen, and determine their main functions.”

Earlier on, Wade and Bradley had succinctly stated the scope of

constitutional law-very relevant to our central theme- as

follows:11

8 Ibid. (fn 7)9 Constitutional and Administrative Law 11th ed, A W Bradley and K Ewing (ed).10 Op cit at page 9.11 Op cit at page 1.

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“Within a stable democracy, constitutional law reflects the value

that people

attach to orderly human relations, to individual freedom under

the law, and to

institutions such as Parliament, political parties, free

elections and a free press.”

Constitutional Law Differentiated From Administrative Law

Constitutional and administrative are two closely related subject

area of law. There is thin line demarcating constitutional and

administrative law. However, in discussing the constitutional law

in a country such as Nigeria, we need to distinguish

constitutional law from administrative law. Administrative law

may be defined as the law which determines the organization,

powers and duties of authorities. Like constitutional law, it

deals with the exercise and control of governmental power.

However, as pointed out by Wade and Bradley:12

“There is no precise demarcation between constitutional and

administrative law… may be defined as the law which

determines the organization, powers and duties of

administrative authorities. Like constitutional law, administrative law

deals with the exercise and control of governmental power. A rough distinction

may be drawn by suggesting that constitutional law is mainly concerned with the

structure of the primary organs of government, whereas administrative law is

concerned with the work of official agencies in providing services and in

regulating the activities of citizens.”

12 Op cit at page 10

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Wade and Bradley also discussed the functions of administrative

law and conclude that:13

“Administrative law serves to ensure that public

authorities take their decisions in accordance with

the law; it is also a means of promoting the

accountability of public authorities and of

securing some public participation in their

decisions.”

One can therefore make a synthetic difference may be made by

suggesting that constitutional law is mainly concerned with the

structure of the primary organs of government, whereas

administrative law is concerned with the work of official

agencies in providing services and in regulating the activities

of citizens. Administrative law is directly affected by

constitutional structure of government because the administrative

bodies are set up or established by the function of the

constitution itself.

In the light of the above, the definition and the scope of

Nigeria Constitutional Law may be stated in general terms as

including constitutionalism within the context of this work and

also as embodying the law provided by the Fourth Republican

Constitution, 1999 (as amended) relating to: citizenship (chapter

3); fundamental human rights and freedoms (chapter 4); the right

13 Op cit page 604.

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to vote (chapter 2); the exercise of executive, legislative and

judicial powers (chapters 5, 6 and 7 respectively).14

Definition of Constitution

Defining constitution could be very tasking because of different

ideas and perspective of authors on the concept. Howbeit, a

constitution can be described as a simple document having a

special legal sanctity which sets out the framework and the

principal functions of the organs of government within the state,

declares the principles by which those organs must operate and

the relationship between the citizens and the organs of

government.15 The Legalpedia Dictionary of Terms defines it as

‘the basic law or laws of a nation or a state which sets out how

that state will be organized by deciding the powers and

authorities of government between different political units, and

by stating and the basic principles of society.’16

In a celebrated case of Adeleke v. Inakoju17 in Nigeria Justice

James Ogenyi Ogebe viewed the word ‘constitution’ as follows:

“The Constitution of any nation is the basic documentwhich regulates the affairs of the nation by setting

14 See also Seth Yeboa bimpong-buta, The Role of The Supreme Court in theDevelopment of Constitutional Law in Nigeria, Submitted in accordance with therequirements for the degree of Doctor of Law – LLD at the University of SouthAfrica, 1 February 2005

15 Ben Nwabueze, Presidential Constitution of Nigeria, (1982)16 Constitution, <http://legalpediaresources.com/dictionary?keyword=constitution>accessed 2nd September, 2014.17 (2006) All FWLR Pt 345 p.211 (P. 253, para B-C; pp.229-300, paras. H-A)

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out the functions and powers of the different

components of government, namely the executives, the

legislature and the judiciary…A constitution is an

organic law, a system or body of fundamental

principles according to which a nation, a state, body

politic or organization is constituted and

governed”.18

In F.R.N. v. Osahon,19 the Supreme Court of Nigeria defined

constitution as follows:"Constitution of any country is the embodiment of what

a people desire to be their guiding light in

governance, their supreme law, fountain of all their

laws. As such, Constitution is not at any given

situation expected to or presumed to contain ambiguity.

All its provisions must be given meaning and

interpretation even with the imperfection of the legal

draftsman. Common sense must be applied to give meaning

to all its sections or articles."20

In a recent decision of the Supreme Court, CPC & Ors v. LADO & Ors21

the position of Nigeria constitution was re-emphasized by the

apex court in a brief description when it opined that ‘a

constitution is the organic instrument which confers powers and

18 Quoted by Akin Olawale Ogundayisi (eds), Electoral Law Reforms and Constitutionalism,(Bosem Publisher Ibadan 2010) at p. 258.

19 (2006) 5 NWLR (Pt. 973) 36120 Per Belgore, J.S.C. (Pp. 24-25, Paras. F-A)21 (2011) LPELR-3997(CA)

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also creates rights and limitations. It regulates the affairs of

the members. The members are bound by its provisions’22

In most countries where the constitution has over- riding legal

force, especially in a democratic government, there is often a

constitutional court which applies and interprets the text of the

constitution in disputed cases. A very good example of such a

court is the Supreme Court in Nigeria, the Supreme Court in USA

or the Federal Constitutional Court in South Africa.23 Even in

the United Kingdom or Great Britain which has no single document

that can otherwise be referred to as a constitution, there are

still primary sources from which the organs of government derived

their power and define their relationship with another or with

the people.

It is important that the conception of the word ‘constitution’

could be interpreted to give a wider meaning. For example,

Bolingbroke stated in 1733: “By constitution, we mean whenever we speak with

propriety and exactness, that assemblage of laws,

institutions and customs, derived from certain fixed

principles of reason; that compose the general system,

according to which the community had agreed to be

governed or in more modern worlds”

22 Per NWODO, J.C.A. P. 46, paras. E-F23 See National Open University of Nigeria Lecture Note on Constitutional Law(Law 234) at p. 7

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Another author agreed that constitution has a wider meaning than

may be seen from the ordinary point of view. It contain the whole

system of government of a country, the collection of rules which

establish and regulate or govern the government and its people.

According to Lawrence Tribe (1978):“The constitution is a historically discontinuous

composition, it is the product, overtime, of a series

of not altogether coherent common promises; it mirrors

vision or philosophy but reflect instead a set of

sometimes reinforcing and sometimes conflicting ideas

and notion”.

This is partly true with reference to American constitution as

well as the constitution of other developing nations where their

constitution are often products or heritage of colonial rule.24

Hence, the term “Constitution” has been variously defined in manners

that are often a reflection of the particular constitution or

constitutions to which the proponent of a particular definition

is exposed. For example, it has been termed as “set of rules that

are not subject to the will of the sovereign authority in the

state and which has existed and must exists in any state worthy

of the term constitution”.25 It is a document, having special

legal sanctity, which sets out the framework and the principal

functions of the organs of government within the state and

declared the principle by which such organs must operate, rules

which set out the framework of government, postulates how it

24 Ibid.25 C. H. Mcllwain, Constitutionalism, 1940, p.145.

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ought to operate and makes declaration about purposes of the

states, society and the rights and duties of citizens, but no

real sanction is provided against violation of particular

provisions of the constitution.26 To be precise about the

definition of constitution as earlier noted above, many of the

authors offered the above definitions as writers and jurists

based on their the features of a particular constitution, their

background, perspective and practice within which they exist at a

particular time or the other. In addition, there is often the

implication of the “autochthony or home grown nature of

constitutions being the basis of its authenticity and

effectiveness. However, in many emerging nations especially of

the third world, former colonial masters or military governments

disengaging from power often enact many of the constitutions in

such nations.

TYPES OF CONSTITUTIONS AND COMPARISON OF THE DIFFERENT TYPES

The nature of a constitution of a country determines the name

ascribed to it. This will also determine the category it belongs

to for the purposes of critical analysis, comparison and better

understanding of the characteristic feature of the type and

nature of government operated under the constitution. The

following categorization that will be discussed in this work is

not sacrosanct. As a matter of fact, country may fall into more

than one of the types due to the practice of its government. For

26 See Kehinde Mowoe, Constitutional Law in Nigeria, Vol. One, 2003, Malthouse Press,Lagos at p.2-3.

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example, a country with a written constitution may as well be

operating a rigid constitution and may, at the same time, be a

federal constitution. All these categories are combinable in a

particular system of government. So, open your mind wide to

understand the types and study the necessary comparison made from

them to be able to distinguish appropriately the various types of

constitution that can exist.

(a)Written and Unwritten Constitution

Written Constitution:

Written Constitution can be described as one in which is found in

one or more than one legal documents duly enacted in the form of

laws. It is precise, definite and systematic.27 It is the result

of the conscious and deliberate efforts of the people. It usually

is documented and framed by a representative body duly elected by

the people at a particular period in history. A written

constitution is adopted on a specific date in history which is

supposed to reflect in the preamble to the constitution. The

constitution of Nigeria, India, and United States to mention just

three, for example, are all written constitutions. They were

first framed by nominated or elected Constituent Assembly made up

of representatives and were subsequently promulgated or adopted

on a definite date.

27 Ankita, ‘What is the difference between written and unwrittenconstitution?’, <http://www.preservearticles.com/201106258609/what-is-the-difference-between-written-and-unwritten-constitution.html> accessed 3rdSeptember, 2014.

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Written constitutions are more ascertainable in that they are

contained in one authoritative document and are often regarded as

more fundamental because of the basic function they perform.28 A

written constitution is therefore rigid and a procedure separate

from that of enacting ordinary law is provided for its amendment

or revision.29 A written constitution may also be termed as an

enacted constitution.30 Modern written constitutions owe their

origin to the charters of liberty granted by the Kings in Middle

Ages. But the first written constitution framed by a

representative constituent assembly was that of the United States

of America. This example was followed by France. During the 19th

Century a number of states framed their constitutions, all of

which were written, with the exception of the constitution of

England.31

Unwritten Constitution:

An unwritten constitution is one in which most of the principles

of the government have never been enacted in the form of laws. It

consists of customs, conventions, traditions, and some written

laws bearing different dates. It is unsystematic, indefinite and

un-precise. Such a constitution is not the result of conscious

28 Kehinde Mowoe, Constitutional Law in Nigeria, Vol. One, 2003, Malthouse Press, Lagosat p.429 See section 9 Constitution of Federal Republic of Nigeria (CFRN) 1999 (asamended).30 See Tunji Abayomi, Federal Legislative Powers, Constitution Decree 24, 1999, (Law SearchersLtd, 2008)31Ankita, ‘What is the difference between written and unwritten constitution?’ibid.

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and deliberate efforts of the people.32 It is generally the

result of historical development. It is never made by a

representative constituent assembly at a definite stage of

history, nor is it promulgated on a particular date. It is,

therefore, sometimes called an evolved or cumulative constitution.33 The

constitution of England is a classical example of an unwritten

constitution. It is mainly the result of historical growth.

The foundation of the English Constitution was laid in the 13th

century by King John, who issued the first charter of British

freedom known as the Magna Charta. Since then, it has been in the

process of making through conventions and usages.

The Distinction Is Not Watertight:

Distinction between a constitution that is written down and the

one not written down is not watertight or sacrosanct. The truth

is that there is no constitution which is entirely written down.

There is equally no constitution that is completely unwritten in

nature. In other words, virtually every written constitution has

an unwritten element in it just like every unwritten constitution

also has a written element.

Let us analyze this position in the light of the constitution of

the U.S.A. which is a classical example of a written

constitution. The Constitution of America provides for an

indirect election of the President, but as a matter of

convention, presidential election has become direct. It was based

on the theory of separation of powers and the President was given

32 Ibid.33 Ibid.

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only, executive powers but today, he is not only the 'Chief

Executive' but also the 'Chief Legislator'.34

Similarly, in the Indian Constitution, which has been written

overtime, recently, conventions have grown.35 Even though the

Constitution gives discretion to the President and the Governor

to appoint any person as Prime Minister and Chief Minister

respectively, but convention has grown that the leader of the

majority party is appointed. Thus, it is practically difficult

for any country in the world to have an absolutely written

constitution. One should not also expect the constitution of a

country to be static. According Ankita, ‘since social and

economic life of society is dynamic, the constitution is bound to

change with changed requirements of the society and very often

through convention rather than law.’36

On the other hand, the Constitution of England is a very good

example of an unwritten constitution. The major part of the

documents that can be referred to as constitutional documents are

relating to the powers of the Monarch, the Cabinet, the

Parliament and mutual relations between the various organs of the

Government are all the result of Conventions. Although, the major

portion of the Constitution of England is based on conventions

and traditions, yet, there are many written laws in it like the

Magna Charta 1215, the Petition of Rights 1628, the Bill of34 Ibid.35 See Naiya Imam,’ Salient Features of India Constitution’, <http://www.academia.edu/6611860/Salient_Features_of_Indian_Constitution>accessed 3rd September, 2014.36 Ankita, ‘What is the difference between written and unwrittenconstitution?’ ibid.

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Rights 1689, the Habeas Corpus Act 1679, the Acts of Settlement

1701, various Reforms Act of 1832, 1867, 1884, Parliamentary Act

of 1911, and the Crown Proceedings Act, 1947 and so on.

(b) Rigid and Flexible Constitution

Rigid Constitution

That a constitution is rigid definitely refers to the difficulty

of its amendment process as may be stipulated by the

constitution. If the procedure requires a special procedure as we

have it in the 1979, 1989 and 1999 constitution of Nigeria and

that of United States of America, such constitution can be tagged

‘a rigid constitution’.

By definition, a rigid constitution is one which cannot be

amended, in the manner in which ordinary laws are passed amended

or repealed. If a special procedure or organ is needed for its

amendment, it is a rigid constitution. As noted by Mowoe,37 any

alteration relating to the provision of section 8 and 9 of the

1999 Constitution requires special procedure which is more

cumbersome and almost impossible in every case. Again, any law

which the constitution forbids or a law made by an organ not

37 Kehinde Mowoe, Constitutional Law in Nigeria, Vol. One, 2003, Malthouse Press, Lagosat P.5

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empowered to do so by the constitution shall be an

unconstitutional law.38

In a rigid constitution, ordinary legislature of the country is

not competent to amend it in the ordinary legislative procedure.

Some laws are referred to as constitutional law which cannot be

amended by the ordinary legislature using normal legislative

procedure.39 Section 315(5) of the 1999 Constitution (as amended)

specifically states that:Nothing in this constitution shall invalidate the following

enactments, that is to say:

(a) The National Youth Service Corps Decree 1993;

(b) The Public Complaints Commission Act;

(c) The National Security Agencies Act;

(d) The Land Use Act;

And the provisions of those enactments shall continue to

apply and have full effect in accordance with their tenor and

to the like extent as any other provisions forming part of

this Constitution and shall not be altered or repealed except

in accordance with the provision of section 9(2) of this

Constitution.40

Moreover, a rigid constitution is the supreme law of the land and

ordinary legislature cannot pass a law to amend or vary what is

contained in the constitution. As a matter of fact, other

legislations derives their sources and validity under a rigid

constitution.41 The authority of other laws is limited and can38 Section 1 CFRN 1999 (as amended).39 See section 315(5) CFRN 1999 (as amended)40 Ibid.41 Section 1(1) and (2) of 1999 Constitution (as amended).

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only be validated by the Constitution, otherwise, it will be null

and void.

Both the Nigerian and the American constitutions are good

examples of rigid constitutions. It cannot be amended in the

manner in which ordinary laws are passed, amended or repealed. A

distinction is maintained between a constitution and an ordinary

law. There is a special procedure for constitutional amendment.

Ordinary law in U.S.A. can be passed by a simple majority of the

Congress, whereas the constitutional laws can be amended only by

the agreement of two thirds majority of the Congress and three

fourths of the states. The requirements is the same in Nigeria

under the 1999 Constitution.42

The Swiss constitution is still more rigid. An amendment whether

proposed by the Federal Assembly or through initiative needs to

be approved by the Cantons and the electorate through referendum.

It must be, thus approved by majority of all the voters casting

their vote and by majority of such votes in majority of Cantons.

Flexible Constitution:

A flexible constitution is one which can easily be amended by

perhaps an ordinary legislative process by the ordinary

resolution. Both constitutional laws and an ordinary law are

treated alike since all constitutional amendments can be made by

a simple majority of the legislature. No distinction is made

42 See Section 9(2) and (3) of 1999 Constitution (as amended)

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between the constitution making authority and the ordinary law

making authority.43

No law is unconstitutional if passed by the Parliament. It is a

sovereign body, at once enjoying the ordinary law making powers

and constitutional law making powers. It is at once a legislature

and a constituent assembly.

The constitution of England is a typical example of a flexible

constitution. The British Parliament is competent to pass, amend

or repeal any constitutional law in an ordinary legislative

process as both constitutional laws and ordinary laws are treated

alike.

(c) Civil and Military Constitution

Civil Constitution

A civil constitution is one which exist in a democratic setting

whereby the tenets of fundamental rights, ideals of democracy are

enshrined. It is consciously prepared and framed for a democratic

government by the people themselves. It defines the relationship

between the representative of the people and the duties and right

of the citizens. A civil constitution is characterized by the

element of freedom, will, representation and participation.

Military Constitution43 Ankita, ‘What is the difference between rigid and flexible constitution?’,<http://www.preservearticles.com/201106258613/what-is-the-difference-between-rigid-and-flexible-constitution.html.accessed> 3rd Septmber, 2014..

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A military constitution on the other hand is a document

superimposed on a country for the purpose of ruling or

controlling the governmental affairs without peoples input. Like

the case in Nigeria, most military constitutions are suspension

and modification of the civil constitution which had existed in a

democratic setting.44 A military constitution is more or less a

Decree or legislation of the Supreme Council of the military

government at any particular point in time. In Nigeria at a time,

it was the Supreme Military Council, at another time, the Armed

Forces Ruling Council and towards the transition to civil rule in

1999, it was named the Provisional Ruling Council. Thus, instead

of the people producing for themselves a constitution of their

own, it was these bodies foisting on the people their own

constitution which some scholars have refused to accept as

autochthonous constitution.

(d) Unitary and Federal Constitutions

Unitary Constitution

A unitary constitution is one which defines a centralized system

of government without constitutional friction between the

national and regional government. It promotes the spirit of

oneness among the people and eliminates the feeling of double

loyalty to one’s regional government and then to the national

government. The document concentrates powers in the national

44 See The Constitution (Suspension and Modification) Decree No. 1 of 1966, No32 of 1975, No. 1 of 1984, No. 17 of 1985 and No. 107 of 1993.

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government and tends to promote a strong and stable government,

than a federal system where power is divided between the federal

and state governments.

It usually a flexible constitution, small and simple to operate

since there is no duplication of government and offices at every

level. Thus, the constitution even though written, can easily be

amended to meet the changing social, economic and political needs

of the country. The document makes the art of governance easy for

those at the elms of affairs.

Federal Constitution

A federal constitution is a document that provide for system of

government between a government at the centre and other component

states with division of powers. Though there are state with

autonomy to govern, it is a single constitutional document that

prescribed their operations. As a result of the above, it is

common to see most federal constitutions rigid and written. In a

federal constitution, there is existence of a rigid form of

amending the constitution. This is to preserve the corporate

existence of the country and check secession bid by any of the

states making up the federation. for example, in line with

section 9 (2) of the 1999 Constitution (as amended), an Act of

the National Assembly for the alteration of the Constitution

other than creation of states, shall not be passed in either

House of the National Assembly unless:

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i. The proposal is supported by the votes of not less than

two-thirds majority of all the members of that House; and

ii. Approved by resolution of the Houses of Assembly of not

less than two-thirds of all the states.

Also, section 9(3) provides that sections 8 and 9 and chapter IV

of the Constitution can only be amended if:

i. The proposal is supported by the votes of not less than

four-fifth majority of the National Assembly; and

ii. Approved by resolution of two thirds of states Houses of

Assembly in the country.

In the United States, an amendment to the Constitution as stated

in the U.S. Constitution,45 can be made by a two- thirds vote in

each House of Congress or by a convention called by congress upon

the application of the legislatures of two-thirds of the states.

The amendments proposed by either body must be ratified by the

legislatures of three-quarters of the states.46

In Australia, any amendment to the Constitution passed by both

the Senate and House of Representatives must be submitted in each

of the States to the electors qualified to vote for the election

of members to the House of Representatives. If any of such law is

passed by one House and rejected by the other and is passed the

45 Article IV Section 3(1) of the U.S. Constitution46 National Open University of Nigeria Lecture Note on Constitutional Law (Law234, P. 41

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second time by the initiating House, after an interval of three

months the Governor-General may refer the law to the electors of

the House of Representatives. If it is accepted by a majority of

the total number of voters, it becomes law.

In the United States, an attempt by American Southern States to

secede from the American Union led to American Civil War between

1869 and 1871. In the American case of Texas v. White47 the US

Supreme Court declared the American Federal union as perpetual

and indissoluble. The court further declared that the union did

not provide any place for reconsideration or revocation except

through a revolution or through the consent of the states.

(e) Monarchical and Republican Constitutions

Monarchical Constitution

A Monarchical Constitution is a constitution where the King or

Queen in the head of government. The government may be

presidential or republican government. In most cases, the Monarch

acts as a ceremonial head with absolute or limited authority.

There is also de factor head of the government in whom the powers

and authority of the executive is reserved. The constitutions of

Nigeria up to 1960 was basically a monarchical constitution with

the Queen of England as the head of state and a representative,

first, Governor General and later Prime Minister as head of

government.

Republican Constitution

47 74 U.S. (7 Wall) 700.

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A Republican Constitution is a document in which the officials of

government are elected as representatives of the people, and must

govern according to existing constitution that limits the

government's power over citizens. Nigeria had its first

republican constitution in 1963 and second republican

constitution was in 1979. The United States of America is also a

vivid example of a state where republican constitution is used to

run the affairs of government. A republican constitution is

usually characterized by appointing a head of state, stipulate

the powers and functions of the three organs of government and

defining the rights and duties of the citizenry. The constitution

is an adoption of the people. It expresses the determination to

exercise control of government through its elected

representatives. It also expresses a limited government by virtue

of the provisions of the constitution.

(f) Presidential and Parliamentary Constitutions

Presidential System of Government

A presidential system of government is a government where all

executive powers are vested in a president who is the head of

state and head of government. The president may exercise the

executive powers of government either directly by himself or

through the vice-president, ministers or other officers in the

public service of the federation.48 The powers of the president

is to maintain the constitution and to apply all the laws made by

the legislature for the time being in force and to implement

48 See section 5(1) of the 1999 Constitution (as amended).

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party programmes and generally uphold the interest of the nation

and the welfare of the people at all times.

The President is elected directly by the people or indirectly

through an electoral college. The President and the cabinet of

ministers appointed by him are not members of the legislature.

The President is free to choose his ministers from within and

outside his party subject to confirmation by the Legislature. The

President is a member of the ruling party. The party advises and

supports him and he implements the programmes of the party. The

ministers are first responsible to the president who appointed

them and he is primarily responsible to discipline the ministers

or otherwise call them to order. The legislature and the

executive may be controlled by different political parties.

The president is responsible to the legislature which may

investigate and impeach him for gross misconduct and he is also

responsible to the people who are the sovereign power in a

country and who may not renew his mandate at election. The United

States of America, Nigeria, Ghana, Kenya and South Africa are

examples of countries operating a presidential system of

government. There are many checks and balances under the

presidential system of government. While the legislature may

refuse to vote for taxes, thus checking a difficult Executive,

the Executive (President) in turn may veto a bill which has been

passed by an uncompromising legislature. But, if the bill is

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passed the second time by two thirds majority, it becomes law. If

however the Bill/Law is challenged on questions of

illegality/constitutionality in court, the judiciary may declare

it unconstitutional, thus acting as a check though the judges are

appointed by the Executive. One can then say that the

presidential model of government is in essence a government of

separation of powers coupled with checks and balances. Although

the office of the minister of justice and Attorney General of the

federation is fused together in Nigeria political and

constitutional practice, effort is being put in place to split

the office so that two different persons will occupy the

positions. The implication is that the Attorney General of the

federation will perform purely constitutional role of prosecution

and as chief law officer of the federation while the minister of

justice does the administrative and politico-legal duties being

the legal adviser in the executive body.

Nigeria and United States of are good examples of countries

practising this system of government and their constitutions are

fashioned in that direction.

Parliamentary System of Government

A parliamentary or cabinet system of government is a government

where all the executive powers of government are vested in a

Prime Minister who is the head of government and head of the

majority party or ruling party, but is not the head of state. In

this system of government, the head of state who exercises only

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ceremonial functions may be a monarch or president who is the

figurehead. The prime minister and the entire ministers in his

cabinet are all members of the same party or coalition of

parties. In a cabinet system of government, there is no complete

separation of powers, nor a complete fusion of powers. Though the

executive and the legislature are completely fused, there is no

over-lapping of powers because the same people constitute both

arms. The judiciary is completely separate from the legislature

and the executive.

Apart from the doctrine of collective ministerial responsibility

and the doctrine of individual ministerial responsibility to

parliament, the prime minister as head of the government or

executive arm has the power to dismiss any minister and he is

primarily responsible for the discipline of his cabinet. The

stability of the government depends a lot on the ruling party

controlling a reasonable majority in the parliament or being able

to form a coalition government with another party or parties.

There is an official opposition party in the parliament, which is

usually the party having the highest number of votes next to the

ruling party in the parliament. The members of the parliament and

the executive arm are one. The prime minister is subject to his

party and is controlled by the party. He remains in office as

long as his party has the majority of members in the parliament.

However, when a vote of “no confidence” is passed on him and his

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cabinet by parliament, the Prime Minister and his entire cabinet

is obliged to resign.

The United Kingdom is the origin and home of this system of

government. Other countries operating a parliamentary system of

government include: Canada, Jamaica, Israel, India, Australia,

Lesotho, Ethiopia and so on. It is however, important to note

that before independence and between 1960 to 1966, Nigeria

operated a parliamentary system of government.

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