Talking Drums

The West African News Magazine

Constitutions and Constitutionalism

E.K.M. Yakpo

A constitution is like a door locked, quite necessary to "honest" people who pass the door and equally useless against a determined burglar.
The aim of this article is not to suggest any particular constitution for Ghana but to start a discussion on fundamental constitutional principles which we must consider in our search for a constitution. Such a discussion is essential because there are many, particularly in Africa, who have lost faith in constitutions. They would argue that constitutions are not worth the paper them. they are written on for no one respects them anyway.

Furthermore, the constitutions are usually incomplete guides to actual practice. Most often, the extra-constitutional organisations which generate and conduct the political process, such as political parties, the churches, the pressure groups, the bureaucracy and above all the armed forces, receive scant mention or are omitted altogether.

But the most persistent complaint is the ineffectiveness of constitutions. Almost every country in the world today possesses a constitution but the vast majority of them are either suspended, or brazenly dishonoured or in the case of most African countries, are continually torn up to make room for new ones.

Some even argue that constitutions are altogether dispensable. For not only Britain but also newer states such as Israel and New Zealand do not have written constitutions, yet these countries follow whatever constitutional rules they may have with impeccable consistency. If the power- holders exercise self-restraint, the argument goes, the written constitution is unnecessary and if they do not, then no written constitution will check

Bearing in mind that a constitution must have an ideological content in order to succeed, we now pose the question, what constitution? Constitutions differ widely as to what they include or exclude

There is much to be said for this argument. The majority of states today are under "revolutionary" governments or have power holders who are indifferent to legal norms or both. Nevertheless this is not a sound reason for rejecting constitutions, perhaps it is more the reason why we should want to study constitutions and evolve new ways of drafting and implementing them.

A constitution is like a door locked, quite necessary to "honest" people who pass the door and equally useless against a determined burglar. It can be, and often is, a deterrent against the casual stroller who might otherwise come in and help himself. We do not discard door locks simply because they are not full-proof.

Further, unless we know what the rules are, we cannot know whether anybody is in breach of them, and the breach of a rule can be as informative as its observance. The ability to tell who has broken a rule, why and the effects of the breach, tell us very important things about the quality and temper of political behaviour in the country in question and often point out the active sources of political power.

Whatever our views may be about the usefulness and effectiveness of constitutions, we will one day draw up yet another constitution for Ghana. It is important to begin a debate on issues we may have to consider when discussing a suitable constitution. We must not forget, that government has come to be universally accepted as a necessity since man will be unable to fully realise himself, his creativity, his dignity and his whole personality, except within an organised society. The concept of constitutionalism, that is the wish to be governed according to pre-determined rules

that a constitution seeks to protect a system, a politico-economic system. Therefore, a constitution is a political, not a legal document. Its provisions may be framed in legal language and sometimes, some of these provisions may be enforceable at a court of law. Nevertheless a constitution remains a guide to political action in the exercise of protecting the political system. Most textbooks on Constitutional Law do not mention the point but only because it is self-evident.

In the West, the principles of free enterprise receive their validity in lengthy constitutional provisions. In Eastern Europe and other socialist countries, the constitutions seek to protect socialist gains. But African constitutions tend to be abstract and remote from this historical experiences of the societies they are supposed to regulate. This is mainly because, with the exception of a few states, African countries have not chosen any particular political system. Until the choice is made, few constitutions are likely to last long.

Bearing in mind that a constitution must have an ideological content in order to succeed, we now pose the question, what constitution? Constitutions differ widely as to what they include or exclude. Some set out to establish rules of law", while others are manifesto-like, such as the Constitution of the USSR, setting out goals which the government must achieve Some have to cater for a federal system while others include Bills of Rights, What is it that motivates the draftsman to choose one type of constitution above the others?

Constitutions fall into two large groups, the first comprises constitutions which are the result of reaction to past experiences. The Constitutions of the United States of America 1787, of the Federal Republic of Germany made, 1949 and of France 1958 are examples of this group.

A new constitution is drafted out of reaction to a new set of circumstances, the establishment of a federation of independent states as in America in 1787, or the restructuring of a new state out of the ruins of Nazi Germany to be known as the Federal Republic of Germany, or the events which in 1958 gave rise to the new Fifth Republic in France. The reasons for the new constitution are often found in the Preamble in a rather autobiographical manner

The second group of constitutions comprise those which are drafted in continuity with the previous one. A good example is the Constitution of the USSR, 1977, In this case, the Preamble is at pains to stress that basically nothing has changed in the concepts of social organisation but that the constitution must be alive to reflect changes which have occurred in the society Clearly such a constitution is out of the question for Ghana at the moment. Such a constitution is possible only when the society has a system and wishes to confirm the gains it has

It does appear therefore that whatever constitution is adopted in the future must reflect our experiences of the past. At the same time we must refrain from attempting to draft constitutions which can resist breach and rather aim at an ideologically committed constitution. A constitution ought to reflect the principles which form the basis of the socio-economic formations in the society.

talking drums 1985-07-15 guinea sekou toure's legacy - writing for young africa