Constitutionalism is a political philosophy based on the idea that government authority is derived from the people and should be limited by a constitution that clearly expresses what the government can and can’t do. It’s the idea that the state is not free to do anything it wants, but is bound by laws limited its authority.In discussing the history and nature of constitutionalism, a comparison is often drawn between Thomas Hobbes and John Locke who defended, respectively, the notion of unlimited sovereignty versus that of sovereignty limited by the terms of a social contract containing substantive limitations (Allan 2001).
In some minimal sense, a constitution may consist of a set of norms that create, structure, and possibly define the limits of governmental power (Allan 2001). In this regard, all states that are governed by constitutions may have some form of checks on how power is exercised. However, the idea of constitutionalism goes beyond norms creating executive, judicial, and legislative powers. These norms are expected to impose significant limitations on the powers of government (Barber 2010).
According to many theorists, the norms imposing limits on governmental powers must be entrenched, either by law or by way of constitutional convention (Barber 2010). Entrenching these limitations does not only facilitate a degree of stability over time, but it is also a requirement of the very possibility of constitutionally limited government (Barber 2010). In constitutionalism, the limitations expected to be placed on the powers of government may take several forms, including civil rights against government, equality before the law, and due process of law (Allan 2001; Eisgruber 2001) 142 R.
E.V Gyampo and E. Graham..To provide a legalistic definition of constitutionalism, it can be said to ?encompass the idea that a government should not only be sufficiently limited in a way that protects its citizens from arbitrary rule but also that such a government should be able to operate efficiently and in a way that it can be effectively compelled to operate within its constitutional limitations. In this sense, constitutionalism combines the idea of a limited and accountable government and rests on two main pillars.
One is the fact that limitations are imposed on government when it is based on certain core values; the second is the ability of citizens to legally compel government to operate within these limitations. Charles Manga Fombad+.Constitutionalism and constitution are not the same as constitution is a body of rules that serves as the fundamental laws of the country.
Generally, constitutions, whether written or unwritten, are sets of rules, practices, customs and conventions that serve as the fundamental laws for the political administration of a country or entity. In modern form, constitutions typically aspire to fetter, bridle and constrain governmental powers, assure adherence to the rule of law and protect individual rights. This is what is referred to as constitutionalism. Indeed, the mere existence of a constitution may not necessarily promote constitutionalism because the document may contain provisions that would not necessarily fetter governmental powers. Such provisions may actually fun dictatorship and lead to the sacrificing of fundamental human rights. Constitutions serve as socially imposed constraints upon human behavior (North, 1990:3).
A constitution of a country is higher than any other law there. This means that if any other law of a country contradicts the constitution, that other law becomes unconstitutional and unenforceable (GYAMPO).The various mechanisms for promoting constitutionalism in Ghana include the following core elements (i) the recognition and protection of fundamental rights and freedoms;(ii) the separation of powers; (iii) an independent judiciary; (iv) the review of the constitutionality of laws; (iv) the control of the amendment of the constitution; and(v) institutions that support democracy. The fundamental idea behind constitutionalism is the need to ensure that a constitution does not become an ornamental document or a sham that politicians can ignore or violate with impunity. It must provide a solid basis for the respect of the rule of law, democracy, and good governance. Charles Manga Fombad+.In promoting constitutionalism in Ghana the recognition and protection of fundamental rights and freedoms must become a standard of constitutionalism.
Universally accepted rights must be entrenched in the constitution along with independent institutions supporting a constitutional democracy, including specifically the Human Rights Commission, Constitutional Court, Electoral Commission, Office of Special Prosecutor, and fixed term for Central Bank Governor, Auditor General and Heads of Security services. In the interest of protecting constitutionalism, all actions violating these values are unequivocally rejected. Entrenching these limitations does not only facilitate a degree of stability over time, but it is also a requirement of the very possibility of constitutionally limited government (Barber 2010)There should be independent judiciary.
According to de Smith, ”constitutionalism is practiced in a country where the government is genuinely accountable to an entity or organ distinct from itself… and where there are effective legal guarantees of civil liberties enforced by an independent judiciary…” Enforcement by independent judiciary enforcing power without fear or favor.
Judiciary must be free from extraneous pressures.The idea of separation of powers and its attendant checks-and-balances as practiced in the US is also seen as one practical means of ensuring constitutionalism. By dividing the business of government among three independent branches, the framers of the American constitution aimed at preventing the formation of too strong national governments and ensuring that the principal powers of government – executive, legislative, and judicial – were not monopolized by any single branch (Alexander 1998).Separation of powers, therefore, refers to the division of government responsibilities into distinct branches of government- legislature, judiciary and executive to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances. Montesquieu, an 18th century French social and political philosopher in His publication, Spirit of the Laws He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently.
While separation of powers is key to the workings of governments, it must be noted no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to be neatly compartmentalized. As a result, there is an inherent measure of competition and conflict among the branches of government.All powers must be subject to limits. There must be controls on executive discretion so that discretionary authority does not degenerate into arbitrariness. One of the core elements of constitutionalism is the regulation of the procedure for amending the constitution.
The aim is not to block constitutional amendments completely but rather to ensure that the process is reasonably difficult to check against any arbitrary or whimsical constitutional changes that may defeat the will of the people. The need to limit and control the ability of African leaders to easily and frequently alter the constitution as they had done before the 1990s therefore seemed to be on the minds of the constitutional reformers. Insofar as the restrictions placed on constitutional amendments are concerned, almost all African constitutions can be placed in the semi rigid category, although the exact extent varies from country to country. A good number require that constitutional amendments should be approved in parliament by a special majority of two-thirds or three quarters, or that failing such a majority the proposed amendment be put to a referendum.
In some constitutions, amendments must not only get the approval of a special parliamentary majority but must also be submitted to a referendum.Implanting and sustaining constitutionalism in Ghana needs provisions for the establishment of a number of institutions with the avowed purpose of strengthening constitutional democracy in the country. The media should be strengthened to promote constitutionalism.To entrench and sustain constitutionalism, good governance, and accountability in Ghana, a number of important reforms need to be made. First, the right to free and fair election as well as the rights of political parties needs to be constitutionally entrenched in so as to reduce the possibilities for electoral fraud and other electoral irregularities. Constitutionalism can work if the institutions and values are entrenched and internalized .Secondly, while tremendous steps have been taken in Ghana’s constitutions to promote constitutionalism, there is need to strengthen this with the entrenchment of certain key principles and institutions of accountability, good governance, and democracy.
Third, there is need to limit the excessive powers that are usually given to African leaders and the immunities that go with this, because they have regularly used such power to entrench themselves in power and make genuine opposition politics impossible. Fourthly, to enhance the judicial role which is crucial in promoting constitutionalism, it has been argued that the bodies that appoint judges should be made more independent and the scope for judicial review needs to be expanded to include both abstract and concrete review and courts dealing with constitutional review should be decentralized to make constitutional justice more accessible in terms of cost and proximity to the people who need it. most. It must be emphasized that the mere existence of a constitution may not necessarily promote constitutionalism in the strictest sense.
To achieve constitutionalism, the constitution itself must contain provisions that bridle the exercise of power.Ainnabila Rosdi 2 constitutionalism lecture Published on Nov 8, 2013 https://slidedownloader.ngelmat.me/slide-downloads/e055d4c15c33b8560d118472776068e0-2-constitutionalism-lecture.pdfhttps://repository.up.ac.za/bitstream/handle/2263/16941/Fombad-paper-2011.pdf?sequence=1Lombash Bidua constitution and constitutionalism Published on May 15, 2013 https://www.slideshare.net/lomashbidua/constitution-constitutionalismhttp://www.jurisafrica.org/docs/ald-mcm/2-constitutional-dev-in-africa/2(iii)%20Charles%20Manga%20Fombad.%20Constitutional%20Reforms%20and%20Constitutionalism.pdfRansford Edward Van Gyampo ; Emmanuel Graham (2014)Constitutional hybridity and constitutionalism in Ghana, Africa Review, 6:2, 138-150, DOI:10.1080/09744053.2014.916846 http://dx.doi.org/10.1080/09744053.2014.916846https://repository.up.ac.za/bitstream/handle/2263/16941/Fombad-paper-2011.pdf?sequence=1 https://study.com/academy/lesson/what-is-constitutionalism-definition-history-concept.html, Nate Sullivan