constitutional law revision

Thomas Mumba v The People (1984) ZL R 38 where Justice Chirwa made the following observations:

"In countries like Zambia where there is written constitution, the Constitution is the Supreme law, any other laws are made because the Constitution provides for their being made; and are therefore subject to it. It follows therefore that unless the Constitution is specifically amended, any Act that is in contravention of the constitution is null and void."

themes that run through this subject

1. the aims of government 2. The relationship between the arms of government 3. The powers and duties of government 4. The limits on government power 5. The relationship between the people and the arms of government 6. Judicial review of the actions of government etc.

signs of a good constitution

2. It should be amendable to change in accordance with the times and needs of the people 3. It should reflect the sovereignty of the people, their will and desires 4. It must provide for the fundamental rights and freedoms of the people 5. The language used in the constitution must be simple, clear and unambiguous 6. It must be well thought through to avoid contradictions within itself 7. It must clearly set out the structure, powers, limitations and duties of the government including its 3 arms namely the Executive, Legislature and Judiciary 8. It must provide for the organisation of a representative, responsible, limited and accountable government 9. The constitution must also make provision for the following: Rule of law Independence of the judiciary A system of local self-governance A sound method of amendment of the constitution The process and machinery for conducting free and fair elections 10. It must not be unduly rigid or unduly flexible 11. It must not be used to unduly target specific political opponents or minority groups. It must be universal. E.g. the 1996 constitution that sought to bar Dr Kaunda from recon- testing elections by including the parentage clause 12. It should be systematically written 13. It must contain the fundamental laws of the land

Rigid Constitution

A rigid constitution is one which has processes that make it difficult to amend. For example, the US Constitution has only been amended 27 times since 1787.

subordinate constitution

A subordinate constitution is not supreme and cannot override other laws on account of inconsistency with itself. It can easily be amended by Parliament. Consequently Parliament is supreme.

Federal Constitution

Sovereignty is divided between central bodies and regional institutions. Such constitutions normally arise when a number of sovereign states come together and agree to surrender some, but not all, of their sovereignty to a central authority.

Supreme Constitution

Supreme constitution is a constitution which cannot be amended with the same ease that other pieces of legislation can be amended. Its authority and unique place can also be seen in the fact that all other laws must conform to it. When other laws do not conform to the constitution they can be declared invalid through the courts of law. As noted above certain jurisdictions do not provide for amendments of this type of constitution whilst others have very stringent rules that ensure that the constitution can only be amended in limited circumstances. The Zambian Constitution is an example of a constitution that is Supreme.

Constitution definition

The Black‟s Law Dictionary at page 354 defines it as follows: 1. "The body of law deriving from the US Constitution and dealing primarily with governmental powers, civil rights and liberties. 2. The body of legal rules that determine the constitution of a state or country with an unwritten constitution. 3. The field of law dealing with aspects of constitutional provisions, such as the restrictions on government powers and guarantees of rights." The Websters New World Law Dictionary defines constitutional law in this way: "The body or branch of law concerned with the study, interpretation and application o f a country or State‟s constitution including the issues of governance, the powers of the branches and levels of government, civil liberties and civil rights." Lastly, Your Dictionary gave the following definition: "The area of law which deals with the interpretation and application of a constitution particularly that of a national government.

The Sources of Constitutional law

The Constitution 2. Enacted Law 3. Judicial Precedents 4. Conventions 5. Authoritative Opinions

Unwritten Constitution

The body of political practices developed through custom and tradition.

Constitution

a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed.

written constitution

a formal document defining the nature of the constitutional settlement, the rules that govern the political system and the rights of citizens and governments in a codified form.

the Constitution 3

in the Zambian context the constitution is contained in a written document and as such its content ca goodn easily be ascertained. However, in other jurisdictions such as the United Kingdom, the constitution is not contained in a single written document, its content can be derived from various sources such as conventions, acts of parliament etc. the constitution is unwritten and uncodified.

Flexible Constitution

one that can be amended more easily, often in the same way that ordinary legislation is passed

Authoritative texts

such as text books and articles by persons that are deemed experts in this area. These are particularly helpful in circumstances where there is no judicial precedent that exists to interpret a particular article of the constitution that is in contention. This source may also serve to amplify and provide further guidance where judicial precedents may exist.

Judicial Precedents

these are the decisions of the superior courts of the land that are binding on inferior courts. These courts include the High Court, Court of Appeal, Constitutional Court and Supreme Court. This source of constitutional law is important because it provides an interpretation of the Constitution.

Enacted Law

this category includes Acts of Parliament and delegated legislation i.e. statutory instruments passed by Ministers and other authorities that have been empowered to make those rules by Parliament. This category is a source of constitutional law because it is intended to be an elaboration of the themes and rules set out in the constitution. The Constitution is not a comprehensive source of the law of the land but provides broad guidelines and directives upon which detailed pieces of legislation are founded to address the minute details pertaining to various minute aspects of national life.

Conventions

traditions

unitary constitution

„A unitary system of government or unitary state is a sovereign state governed as a single entity. The central government is supreme and the administrative divisions exercise only powers that the central government has delegated to them