Constitution making in developing countries

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

CONTINUED FROM LAST WEEK

But a constitution need not be, and has not always been, in writing. Primitive and illiterate societies have no written constitution or laws; nor did most countries of Africa before the advent of European rule. Up till today, British constitution is only partly written; so is the constitution of New Zealand.

What then is a constitution?

According to the authors of the Shorter Oxford English Dictionary, constitution is defined as:

1)            ‘The mode in which a state is constituted or organised.

2)            ‘The system or body of fundamental principles according to which a nation, state, or body politic is constituted or governed.’

Here, a distinction must be drawn between CONSTITUTION and GOVERNMENT, and between STATE and NATION. Among the members of the general public, CONSTITUTION and STATE are respectively regarded as synonymous with GOVERNMENT and NATION. Strictly speaking, they are not.

GOVERNMENT means:

‘The body of persons charged with the duty of governing a state.’

A cursory comparison between the meanings of CONSTITUTION and GOVERNMENT makes the distinction clear and indubitable. Indeed, the distinction is so sharp that it is erroneous, in serious discussions, to speak of FEDERAL OR UNITARY GOVERNMENT.

A STATE has been defined by Salmond as:

‘an association of human beings established for the attainment of certain ends’.

Keeton’s definition is more explicit than Salmond’s and distinguishes a state more clearly from other human associations like partnerships, limited liability companies, clubs, etc. It runs as follows:

‘A state is an association of human beings, whose numbers are at least considerable, occupying a defined territory, and united with the appearance of permanence for political ends, for the achievement of which certain governmental institutions have been evolved.’

On the other hand, according to three distinguished authorities, a NATION is defined as:

1)            SHORTER OXFORD ENGLISH DICTIONARY _ ‘A distinct race or people, characterised by common descent, language, or history, usually organised as a separate political state and occupying a definite territory. ‘

2)            SALMOND – ‘A group of persons who feel that they are distinct from others on grounds of culture, language, and sometimes common ancestry.’

3)            KEETON – ‘A community of persons linked either by their historical development, common speech or common social customs, or several of these criteria, in such a way that such persons would still tend to cohere even if separated under different governments.’

From these definitions of STATE and NATION, four important points emerge.

FIRST: A state may consist of a number of nations – as in the USSR, India, Nigeria, and Switzerland.

SECOND: A nation may be divided into a number of States; as in Ancient Greece, and as is the case with the Ewe-speaking people in Ghana and Togo, the Kurd-speaking people in USSR, Iraq, Iran, Turkey and Syria, the Greek-speaking people in modern Greece and Cyprus, and the German-speaking people in Western Germany and Eastern Germany.

THIRD: A nation may be coextensive with a state; as in Portugal and Italy.

FOURTH: Whilst a nation need not have political ends in order to maintain its cohesion, unity, and corporate existence, a state must. In other words, whilst it is imperative that the elements or objectives for the cohesion and continued corporate existence of a state must be consciously organised and continuously sustained by the members of the state, all that a nation needs for the preservation of its cohesion and corporate continuance are already ingrained at birth, as unconscious powerful tendencies, in the members of the national group, and nurtured by many self-sustaining, cultural ties and sentiments.

It is generally agreed that the phrase DEVELOPING COUNTRY is euphemistic either in current use to distinguish an economically backward and underdeveloped country from an economically developed and advanced one.

The chief common feature of all backward, or underdeveloped, or developing countries is extreme poverty.

For better understanding and near-mathematical accuracy, economists have chosen a more or less arbitrary criterion for identifying backward or developing as well as developed or advanced countries. Their yardstick is the United States of America. If the income per head of a country falls below one-quarter of the income per head in the USA, then that country is said to be backward, underdeveloped, or developing. It must be emphasised that the phrase has no political import or denotation at all.

Applying this yardstick, and having regard to available national income data of all the countries of the world, it is easy to discern and declare that developing countries are to be found mostly in Africa, Latin America, the Middle East, and the Far East. In the face of this, it becomes obvious that there is a very strong nexus between political instability with its accompanying necessity for constitutional changes, and economic backardness and poverty.

Constitution-making is, however, not a process confined to developing countries only. Now and again, some developed countries do give themselves new constitutions: as was, for instance, the case with Japan in 1946, Austria in 1955, and France in 1958.

There are three types of constitution. They are unitary, federal and confederal.

Under a unitary constitution, the supreme legislative power in the state is vested in a single authority. Whereas under a federal constitution, the supreme legislative power in the composite state is shared between the central authority on the one hand, and the regional authorities on the other, all of which are coordinate with and independent of one another in the discharge of the functions expressly, or by necessary implication, vested in them by the constitution.

CONTINUES NEXT WEEK

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