Constitution making in developing countries

From a lecture delivered at the University of Lagos on Friday, 24th February, 1967.

CONTINUED FROM LAST WEEK

Every member of any human association has rights, intangible though they are, which are sacred and inalienable and which must be protected against any invasion, at all costs. In a state, such rights are termed fundamental human rights. In order to discharge one of its primary functions of maintaining internal order and security and to ensure its own solidarity and survival, every state must recognise, and guarantee to all its citizens the fundamental rights of man.

In some developed countries, these rights are recognised as a result of immemorial customs, and the courts scrupulously enforce them as such.

Experience, however, has shown that in developing countries, those rights must be fully set out and entrenched in a written constitution if they are to have any chance at all of due recognition and enforcement. But experience has also shown that, where, in any country whether developed or developing, these rights have not been duly recognised, protected and enforced, people have resorted to self-redress, leading to large-scale violence, bloodshed, and killing.

It is, therefore, of exceeding importance that in a developing country, fundamental human rights should be entrenched in the constitution, and provisions for their inviolable protection and impartial enforcement should also be clearly set out and entrenched.

4. FORM OF GOVERNMENT: Mankind, in its long and tedious progression since the beginning of recorded history, has tried various forms of government such as theocracy, gerontocracy, autocracy, oligarchy, tyranny, ochlocracy, democracy, etc. From all available historical evidence, however, it is clear that the best of them all is democracy. This proposition is substantiated by the fact that even those who practise autocracy, tyranny, or oligarchy are so conscious of the inferiority of this form of government that they give it the label of democracy in order to pass it off to their fellow citizens and foreign observers as the ideal.

The inherent characteristic of democracy, which distinguishes it from any other form of government, is that it posits the ultimate principle that political power or sovereignty belongs to the entire people of a state rather than to the few or the one, and that it is the entire people of the state who are entitled to exercise this power for their own benefit.

No country in the world, from antiquity to the present day, has attained this ideal of direct democracy. The Greek city-state of antiquity, because of its small size, went very close to attaining the ideal. In nine of the Swiss cantons, direct democracy is practised to the extent that a referendum is mandatory for all legislation. The advent of nation-states and multinational states has made it much more difficult to practise anything resembling the democracy of the Swiss cantons or that of ancient Greece.

But in its efforts towards the attainment of the ideal, mankind has evolved a representative or indirect democracy. In this form of democracy, the adult members of the state periodically elect some persons from among themselves who are charged with responsibility for the making and execution of laws for the state, and for its general day-to-day administration.

Various methods have been devised for the practice of representative democracy. In some countries, it is permissible for the representatives to be elected by a relative rather than an absolute majority of votes; in some others, the constitution prescribes that the representatives must have an absolute majority of votes; and in yet some other countries, the method adopted is such as to ensure that the representatives consist of practically all the shades of political opinion in the state. Again, in some countries the legislative representatives, on the one hand, and the executive representatives, on the other, are separately elected by and responsible to the people; but in others it is only the legislative representatives that are elected by and responsible to the people, whilst the members of the executive are chosen from among, and responsible to, the legislative representatives.

It is clear from the foregoing that in order that the persons elected by whatever method may be regarded as the accredited representatives of the adult members of the state, the electors must be allowed to exercise their right of choice without let or hindrance. They should not be intimidated or coerced into making an unwanted choice, and they should be allowed to make their choice in secret so as not to be subjected to any fear in casting their votes, and not to be exposed to hatred and hostility from those who have not been favoured by their votes.

In devising its method of representative democracy, every state should bear certain postulates in mind.

1)            ‘Every person has the right to freedom and to the unfolding of his personality.’

2)            Every person has the right to hold, express, and canvass any opinion he likes.

3)            All persons are equal in the eye of the law and are therefore entitled to equality in the enjoyment of the rights of personal liberty, of association, and of free movement.

4) Every adult person is entitled to have a say in the manner in which the affairs of his country are being or should be conducted.

The rationale for these postulates can be demonstrated. But there is neither time nor space to do so here.

Nevertheless, I would like to stress that the acceptance and observance of these postulates automatically rule out the legitimacy of the so-called one-party system. Because of heredity, upbringing and other factors, there are scarcely two men in any community exactly alike in their thinking, opinions, and affections. It is, therefore, all that the people in a state can do to form themselves into different political associations or parties, each of which, in Burke’s words, is:

‘united for promoting by their joint endeavours the national interest upon some particular principle upon which they are agreed.’

CONTINUES NEXT WEEK

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