Constitutional Law Chapter 1

Chart of State

- deals with the operational system of the state. - concerned with how public authority is distributed, exercised and controlled. - concerned about the accession to and succession in office of those responsible for its exercise.

Preamble

- included for symbolic and ideological purposes. - usually written in grand rhetoric style and glorifying the country's history , it's struggles and its champions - usually not binding or enforceable.

Financial Provision

-About how money is to be collected -How money should be spend -And controls over entities that handle public funds (oversight)

Bill of Rights

-Gives legal protection for human rights; -Limits state power in relation to its citizens; -Usually civil political rights, but modern constitutions now contain economic, social and cultural rights.

Amending Provision

-The amending provision is like a safety valve, which helps the constitution to release pressure which might threaten its violent destruction. -It allows the present generation to modify the ground rules which it has inherited from the past without rejecting the whole system of government. -The provision usually has inbuilt mechanism to prevent arbitrary amendment or destruction of the constitution See Article 79 of the Zambian Constitution.

Functions of the Constitution (6)

1. Operates as a manifesto; a confession of faith. 2. It establishes the government, administration and other state organs, confers powers, imposes limitations on the exercise of that power, indicates which bodies resolve conflict and provides for the standard and procedures for dispute resolution. 3. It is the ultimate source of legal authority and form the foundation for the public law system that is the constitution is the law behind the law see preamble (we the people) Article 1(1) Supremacy of Constitution and 5(1) Sovereign authority vests in the people. 4. It provides a legal framework for government operations. 5. It a sources of legitimacy of the state and it's activities. 6. It sets the legal and political parameters of individual's interactions with the state.

What the constitution contains (5)

1. Preamble 2. Chart of State 3. Amending Provision 4. Bill of Rights 5. Financial Provision

Republican and Monarchical Constitution

A republic usually has its figurehead a democratically elected president, answerable to the people and to the constitution. In a monarch, the head of state is unelected and office is usually inherited Swaziland seems to be the last standing absolute monarchy in Africa. All acts of government are done in the name of the monarch. In constitutional monarchs (such as the UK), the monarch only enjoys little practical power as this is exercised by an elected government.

Constitution

A set of rules that govern an organization. Every organization which has defined objectives and departments or offices to achieve those objectives needs a constitution to define the powers, duties and rights of every member of the organization. It also makes provision for the manner in which the organization relates to outside bodies. The constitution also serves two important purposes those of defintion ans evaluation. It willl define the manner in which the rules infact operate and dictate what ought to happen in a given situation. (Barnett)

Supreme and Surbodinate Constitution

A supreme constitution refers to a state in which the legislative powers of the governing body are unlimited; while a subordinate constitution is one whose powers are limited by some higher authority.

Written and Unwritten Constitution

A written document is one contained within a single document or a series of documents, with or without amendments, defining the basic rules of the state. The modern origins of written constitutions lie in the American War of Independence (1775-1783) and the French Revolution (1789). Unwritten constitutions are usually not set out in a single document but contained in a series of statutes, rules and conventions. The United Kingdom, Israel and New Zealand are examples of countries without written constitutions.

Legislation

Acts of Parliament and delegated legislation (i.e. statutory instruments promulgated by ministers and other authorities upon whom parliament has conferred power to legislate) are an important source of constitutional law. Even where a formal constitution exists, it cannot be comprehensive enough to cover every aspect of constitutional law. Often the constitution lays down general rules which have to be elaborated in statutes and delegated legislation.

Scope of Constitutional Law

Constitutional law is concerned with the role and powers of the institutions within the state and with the relationship between the citizen and the state. It is a living and dynamic document or organism which at any point in time must reflect the moral and political values of the people it governs and, therefore, it must be appreciated within the socio-political context within which it operates.

Authoritative Opinion

Generally, no legal textbook has intrinsic authority as a source of law: the authority of the most eminent text-book is confined to the extent to which a court considers that it accurately reproduces the law as enacted by the legislature or decided by earlier courts. Where a statute has not yet been judicially interpreted, or where no court has pronounced authoritatively on a matter, then the opinions of text-book writers and academic authors may be of great value to the legal profession, as well as to the court when a case arises for decision.

Formal constitutions (the constitution itself)

Most countries, including Zambia, have a formal written constitution, which is the most important source of constitutional law, from which all other laws derive their authority.

Federal and Unitary Constitution

The common feature of all federal states (e.g., USA, Nigeria, Canada, Australia, Ethiopia and Malaysia) is the sharing of power between the center and region- each having an area of exclusive power, other powers being shared on some defined basis. Equally common of all federal states is the idea that the written constitution is sovereign over government and legislature and that their respective powers are not only defined by the constitution but also controlled by the constitution, which is interpreted and upheld by the Supreme Court or a Constitutional Court. In a unitary government all power vests at the center and regions do not enjoy any (semi-)autonomy.

Judicial Precedence

The decisions of the courts interpreting the constitution and other related legislative enactments. Under the doctrine of precedent, or stare decisis, these decisions are binding on inferior courts and may, according to the relative status of the courts in question, bind other superior courts.

Separated Powers and Fused Powers

The essence of the doctrine of separation of powers is that the powers vested in the principal institutions of the state (legislature, executive and judiciary) should not be concentrated in the hands of any one institution. The object is to provide checks and balances and prevent the potential of tyranny. The opposite of this is a totalitarian state where a single figure or single body is vested with the sole power to enact laws, administer the state and adjudicate disputes.

Rigid and Flexible Constitution

This relates on the issue as to whether or not a constitution can be amended with ease. In constitutions, all or some provisions may be entrenched, that is, the constitution stipulates stringent procedures to be followed in any attempt to amend the provision. In Zambia the Bill of Rights and Article 79 are entrenched.

Classes of Constitution (6)

a) Written and unwritten; b) Rigid and flexible; c) Supreme and subordinate; d) Federal and unitary; e) Separated powers and fused powers; and f) Republican and monarchical.

List Sources of Constitutional Law (4)

a. Legislation b. Judicial Precedence c. Authoritative Opinion d. Formal Constitution (The constitution itself)