Types of constitutions PDF

Preview

Summary

For information on the types of constitutions that exist....

Description

Classifications of constitutions.

UNIVERSITY OF EMBU.

CONSTITUTIONAL LAW THEORY. LPR 111

Assignment as presented by: GROUP THREE. REGISTRATION NUMBER L250/18137/2019 L250/18180/2019 L250/18170/2019 L250/18119/2019 L250/18298/2019 L250/18260/2019

NAME STEVE MBURU KARIUKI TRACEY KAWIRA KABURU GLORY KANANA KIMATHI MUGAMBI C. MUNENE JUNE NYAWIRA MACHARIA DERICK KIGOTHO KAMBO

SIGN

Table of Contents 1.

Monarchical and republican constitutions............................................................3 2.

Presidential and parliamentary constitutions....................................................3

3.

Federal and unitary constitutions......................................................................3

4.

Political and legal constitutions.........................................................................3

1|Page

Classifications of constitutions. 5.

Codified, uncodified, flexible and inflexible constitutions.................................4

6.

Facade constitutions......................................................................................... 4

7.

Written and unwritten constitutions..................................................................4

8.

Evolved and enacted constitutions...................................................................4

9.

Secular and religious constitution.....................................................................5

10.

Supreme and subordinate constitution...........................................................5

11.

Civil and military constitution.........................................................................5

CLASSIFICATIONS OF CONSTITUTION The nature of the constitution adopted by different countries may define which category it falls into in out classification. However, this compilation is not conclusive in that a country may fall into one or more categories. The CoK 2010, for example, it is secular, republic and others. A constitution is the essential representative of the state, where the constitution changes, the state also changes. A constitution is a set of fundamental precedents upon which the state is governed. Essentially there are certain criteria used to classify constitutions into various groups. According to Aristotle classification of constitution is based on: 

The number of people exercising power and,



The ends they seek to serve, self-interest or benefit of the community.

He had divided his constitutional distinction into two main categories, right or ideal constitutions and perverted or wrong constitutions. Right constitutions mainly focused on the general good of the people or citizens while the perverted constitution mainly maximises the benefit of the rulers. 1. Monarchical and republican constitutions In a monarchical constitution the head of state is a monarch, however their powers are limited and the prime minister is the political leader. Accordingly, a constitutional monarchy is one that is limited. A republican constitution on the other hand is one that provides for the election of the head of government and head of state who is a president. 2|Page

Classifications of constitutions.

Both constitutions were a result of liberation from colonialism and the monarch respectively. 2. Presidential and parliamentary constitutions In a presidential constitution the president will be the head of state and the head of the executive branch of government but not the legislature and shall not be accountable to it. In a parliamentary constitution the head of the executive is a prime minister who will also be the head of the executive and also a member of the legislative branch of the government and accountable to it. 3. Federal and unitary constitutions In a federal constitution apart from a central constitution there is also at at a state, county or any other devolved system established; that has legislative competence under the constitutional arrangements. Example is South Africa. A unitary constitution is a constitution that is established to govern the country centrally with no distributive mandates to lower or any other devolutions established. 4. Political and legal constitutions A political constitution is associated with holding to account those who hold political power, because it advocates that the making of laws is the exclusive domain of the parliament, and only when the parliament legislates does the law become legitimized. It also argues that politics is the best way to exert government accountability because entrusting government accountability to the judiciary is neither democratic nor effective, due to the fact that the judiciary does not have the democratic democracy of an elected government. Behind a political constitution is the concept of majoritarianism, i.e. that an elected majority should make the decisions affecting the voters rather than leaving those decisions to the courts. A legal constitution is a constitution where the judiciary forms the greatest check upon the use of executive power. 5. Codified, uncodified, flexible and inflexible constitutions. A codified constitution means that it is written down comprehensively in a single document. An uncodified constitution means it’s not written down in a single document; the constitution could be found in many documents or even not written down- this is called convention- where it’s just tradition that gives a law it’s power.

3|Page

Classifications of constitutions.

A flexible constitution is one that can be amended with ease and inflexible is one that is super hard to change. However, they provide a method or process in which the terms of the constitution can be changed. 6. Facade constitutions. These are constitutions that even if they establish and independent judiciary or express respect for human rights the government can ignore it when it feels threatened, or it can just never be put into practice e.g. Constitution of the Soviet Union, that expressed supported Freedom of speech and freedom of assembly yet anyone who went against the unwritten limits were imprisoned. 7. Written and unwritten constitutions. An unwritten constitution is one in which most but not all of the prescriptions have never been reduced to writing and formally embodied in a document or collection of documents. It mainly encompasses customs, usages and judicial decisions together with a smaller body of statutory enacts merits of a fundamental character. A written constitution on the other hand is one in which most of the provisions are embodied in a single formal written instrument or instruments, its main aim is to lay down a body of fundamental principles under which the government shall be organized and conducted. Distinction between a constitution that is written down and the one not written down is not watertight or sacrosanct. The truth is that there is no constitution which is entirely written down. There is equally no constitution that is completely unwritten in nature. In other words, virtually every written constitution has an unwritten element in it just like every unwritten constitution also has a written element. Distinction between a constitution that is written down and the one not written down is not watertight or sacrosanct. The truth is that there is no constitution which is entirely written down. There is equally no constitution that is completely unwritten in nature. In other words, virtually every written constitution has an unwritten element in it just like every unwritten constitution also has a written element. Distinction between a constitution that is written down and the one not written down is not watertight or sacrosanct. The truth is that there is no constitution which is entirely written down. There is equally no constitution that is completely unwritten in nature. In other words, virtually every written constitution has an unwritten element in it just like every unwritten constitution also has a written element.

4|Page

Classifications of constitutions.

8. Evolved and enacted constitutions. An evolved constitution is the result of historical development. It is not framed at a particular time. An enacted constitution is framed at a particular time, like the Kenyan Constitution which was framed by a Constitution committee after necessity arose. 9. Secular and religious constitution. Secular recognizes no religion and treats all religions equally while a religious constitution recognizes a certain religion as the state religion. 10. Supreme and subordinate constitution. A supreme constitution refers to a state in which the legislative powers of the governing body are limited. Subordinate constitution refers to a state where the legislative powers of the governing body are unlimited. 11. Civil and military constitution. 12. A civil constitution is one which exist in a democratic setting whereby the tenets of fundamental rights, 13. ideals of democracy are enshrined. It is consciously prepared and framed for a democratic government by 14. the people themselves. It defines the relationship between the representative of the people and the duties 15. and right of the citizens. A civil constitution is characterized by the element of freedom, will, 16. representation and participation A civil constitution is one which exist in a democratic setting whereby the tenets of fundamental rights, ideals of democracy are enshrined. It is consciously prepared and framed for a democratic government by the people themselves. It defines the relationship between the representative of the people and the duties and right of the citizens. A civil constitution is characterized by the element of freedom, will, representation and participation. A military constitution on the other hand is a document superimposed on a country for the purpose of ruling or controlling the governmental affairs without peoples input. A military constitution on the other hand is a document superimposed on a country for the purpose of ruling or controlling the governmental affairs without people’s input.

5|Page...