Constitutionalism and Democratic Governance in Africa: - PULP

16 Chapter 2
maintains a proper connection between the different parts; while, on the
other hand, ‘the Sovereign exercises his proper functions in accordance
with the provisions of the constitution’. 3 Lawfulness required government
to be taken strictly in accordance with law – but did not limit the range of
lawful assertions of government power. Lawfulness – rule of law – was tied
to avoidance of the tyranny of the individuals invoking state power, but not
to the regulation of the substantive ends for which that power might be
invoked. Besides, no one was particularly fussy about the content of those
constitutions. ‘Democracy, for example, so important in the modern
understanding of constitutionalism, was viewed as a choice that might be
rejected in whole or in part’. 4
It was the memorialisation and institutionalisation of political power
that marked constitutions. It was the territorial borders of a state that
marked its limits. Constitutions could be declared the product of a
fiduciary obligation to ancestors for the protection of the subjects. 5
Accordingly, the law of the constitution, then, could be understood
essentially as a theoretic of higher law grounded in the power of uniquely
constituted and inward-looking political communities. 6
In the aftermath of the World War II and in the context of the
construction of an institutional framework for discourse (and action)
among the community of nations, values have become important in
constitutions, and the ability of states to insulate themselves from the
influence of others has been substantially reduced. Emerging from that war
were the beginnings of a consensus that values matter in the establishment
of constitutions that such values were superior in authority to any
peculiarities of national sentiment, and that they could be enforced. ‘A
constitution without legitimacy is no constitution at all. It is outside the
law in the sense that it ought not to be respected by the community against
which it is applied.’ Legitimacy is a function of values, which in turn serve
as the foundation of constitutionalism. 7 Backer has suggested that
constitutional legitimacy is grounded in the development of a single system
designed to give authoritative expression to the customary values of the
community of nations that together make up the value systems of
3
Backer (n 2 above) 673.
4 Backer (n 2 above) 674.
5 The preamble to the Japanese Imperial Constitution of 1947 (as amended) exorbitantly
stated:
Having, by virtue of the glories of Our Ancestors, ascended the throne of a lineal
succession unbroken for ages eternal; desiring to promote the welfare of, and to give
development to the moral and intellectual faculties of Our beloved subjects, the very
same that have been favoured with the benevolent care and affectionate vigilance of
Our Ancestors; and hoping to maintain the prosperity of the State, in concert with Our
people and with their support, We hereby promulgate ... a fundamental law of the State,
to exhibit the principles, by which We are guided in Our conduct, and to point out to
what Our descendants and Our subjects and their descendants are forever to conform.
See also Backer (n 2 above).
6 As above.
7 Backer (n 2 above) 676.