Constitutionalism and Democratic Governance in Africa: - PULP

22 Chapter 2
We might, in fact, think of various theories of constitutionalism along a
continuum, defined by this ‘particularistic-to-universalist’ axis. At one end are
views of constitutionalism that see the role of the constitution as delineating a
national identity, by in effect highlighting and sharpening distinctive events,
features, and moments of the nation’s shared history. At the other end are
views of constitutionalism that see the role of the constitution as imposing
constraints, in the name of universalist conceptions of humanity, on just that
sort of national distinctiveness: the purpose of the constitution, in other
words, as understood at this end of the spectrum, is to require of the state
obligations derived not from the country’s history, but from the human status
of the state’s citizens.
For this reason, constitution as a concept is distinct from the concept of
constitutionalism, the latter serving as a means of evaluating the form,
substance, and legitimacy of the former. 31 Notwithstanding the above,
whether constitutionalism is perceived as delineating a national identity of
the nation’s shared history, a legal principle, a set of rules aimed at
achieving a specific end or a body of values underlying the government of
a society, two main approaches to constitutionalism may be distinguished;
the traditional and the modern approaches. ‘Legal scholars generally
favour the first, which is based on rules and institutions, while political
scientists, sociologists, historians, and economists tend to adopt the
latter’. 32
3.2.1 Traditional approach to constitutionalism
Ihonvbere 33 and Shivji, 34 construe constitutionalism as a liberal concept
which rests on two pillars, namely, limited government and individual
rights. In McIlwain’s view: ‘the most ancient, the most persistent, and the
most lasting of the essentials of true constitutionalism still remains what it
has been almost from the beginning, the limitation of government by
law’. 35 Henkin’s thinking rests upon the American sense of
constitutionalism by stating that ‘American constitutionalism – which is
not novel – implies a government subject to the constitution; it implies
limited government, government with agreed powers for agreed purposes,
subject to the rule of law; it implies fractionalised authority to prevent
concentration of power and the danger of tyranny. Constitutionalism
implies also the reservation of a large private domain and retained rights
for every individual’. 36 Primarily, it is needless to say that the concept of
constitutionalism in the traditional approach has often been anchored on
the aspect of political power which is inevitably immense. Hence, it should
31 AHY Chen ‘A tale of two islands: Comparative reflections on constitutionalism in
Hong Kong and Taiwan’ (2007) 37 Hong Kong Law Journal 647.
32 Mangu (n 27 above) 13.
33 Ihonvbere (n 24 above) 13.
34
Shivji et al (n 9 above) 28. See also Mangu (n 27 above) 13.
35 Mangu (n 27 above) 14.
36 As above.