Constitution making in developing countries

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

CONTINUED FROM LAST WEEK

A confederal constitution is easily distinguished from a federal constitution. While the central and regional authorities under a federal constitution are coordinated and independent of one another, under a confederal constitution, the central authority is, to a large extent, dependent on the regional authorities. In other words, the central authority is neither coordinated with nor independent of the regional authorities. For all practical purposes, it owes its existence to the sufferance of the regional authorities.

A federal and a confederal constitution is invariably a written constitution, for the simple reason that the division of functions between the central and regional authorities which is inevitable, together with the attendant numerous provisions, cannot be left to what Harold Laski has graphically termed as the ‘hazards of human memory.’

As has been noticed, one of the things that a constitution does is to prescribe the organs of government.

There are, however, several forms of government from among which constitution-makers can choose. Some of them, which are still in current use in different parts of the world, are oligarchy, autocracy, tyranny and democracy.

It may be noted, in passing, that all forms of government can be found under two mutually exclusive species of government, namely: monarchical, and republican.

The primary aims and objects of a state are – defence against external aggression and the maintenance of internal peace, order and security. In modern times, these primary aims have been tremendously extended to include the economic prosperity and social welfare of the people.

FUNDAMENTAL FACTORS

From what we have said, the following FOUR fundamental factors emerge for very careful and serious consideration by all those who are called upon to make a constitution for a developing country, or for any country for that matter, namely:

1) The composition of the state;

2) The type of constitution that is suitable;

3) The aims and objects of the state; and

4) The form of government.

We will take these four factors one by one and treat them in the order in which we have stated them.

1. THE COMPOSITION OF THE STATE: The first thing to ascertain is whether or not the state consists of more than one nation or linguistic group. This is of extreme importance. Because an error in this regard may lead to a more or less permanent state of friction and disharmony within the state concerned.

Much of the constitutional instability and political upheaval in different parts of Africa would be considerably reduced if African leaders took the trouble, or were objective enough, to ascertain and acknowledge the difference between NATION and TRIBE.

From its definition, we will see that the distinctive and inseparable characteristics of a nation are common language, common culture, and sometimes common ancestry. Within the nation, there are usually many tribes, each of which speaks a common dialect, but all of whom speak the same language which is their mother tongue, share the same culture, and sometimes claim a common ancestry. These tribes, to borrow the words of KEETON, ‘will tend to cohere even if separated under different governments’; witness the irresistible tendency to cohere on the part of the Greeks in Cyprus and Greece, on the part of the German-speaking people in the two Germanies, and on the part of the Ewe-speaking people in Togo and Ghana.

To classify a NATION as TRIBE is unscientific in the extreme and is bound to lead to serious and unpleasant consequences in the process of applying and employing such classification. in the twilight or dimness of such an error, two or more nations will be lumped together and treated as if they possess the same cultural characteristics.

The most manifest and the most easily recognised cultural difference between two nations is language—the mother tongue. As I said in ‘Thoughts On Nigerian Constitution’, ‘language lies at the base of all human divisions and divergences’. It breeds suspicion and generates an unconscious overpowering urge for separateness and exclusiveness. Whatever view different classes of people may hold about the authenticity of the story, it is worthy of note that work on the construction of the city and tower of Babel came to an abrupt and permanent end, when ‘the Lord did there confound the language’ of the builders. I maintain that ‘you can unite but you can never succeed in unifying peoples whom language has set distinctly apart from one another’. If you tried, you might appear to succeed in the short run, but the ingrained tendency to cohere was ingrained at birth and self-sustaining identity will eventually overcome any inducement to the contrary.

In other words, whilst, as we have said earlier on, the tendency to cohere was ingrained at birth and self-sustaining in all the individual members, or tribal groups, of the same nation, there is no such inherent tendency in the members of two different nations. In the latter case, the tendency to cohere must be consciously planted in the nations concerned and sedulously nurtured and maintained. In short, in making a constitution, it is absolutely imperative to make a meticulous analysis of the composition of the state concerned, as well as an accurate and scientific classification of the resulting elements.

2. THE TYPE OF CONSTITUTION: In looking for a suitable constitution for a country, only the unitary and federal types need be considered. From all available historical evidence, a confederate constitution is an unrelieved failure. It has never successfully served any state as a permanent constitution. As a temporary expedient, its only record of success was in the United States of America from 1776 to 1786.

In considering which of the remaining two types is suitable, the composition of each state must be taken into strict account. If the state in question is composed of one nation, that is to say, if it is a uni-national or uni-lingual state, the constitution must be unitary. If it is federal, the tendency to cohere among the constituent states will strengthen the central authority at the expense of the regional authorities; with the result that the constitution will remain only federal in name but unitary in actual fact.

CONTINUES NEXT WEEK

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