The Relationship Between Constitutionalism and Democratic Governance

INTRODUCTION

The study of constitutionalism occupies a significant place in the sphere of comparative politics and it is universally accepted to be a necessity for any given society as it limits arbitrariness inherent in government and ensures that its powers contained in the constitution are to be used for the good of society. It is the constitution that directly or indirectly affects the exercise of the sovereign power of the existence of a constitution in a state. However this essay is going to discuss the relationship between constitutionalism and democratic governance. First and foremost in order to enhance a common understanding, we must first understand the key terms in the question and that is Constitutionalism and Democratic Governance. To begin with, Constitutionalism is defined as a government conducted in accordance with and within the limits set by the fundamental law of the Constitution. The Constitution, as a body of written or unwritten basic law, is superior to and takes precedence over all ordinary acts of the legislature and over all decisions and actions of the executive branch of the government.

Under the Constitution, restrictions on the discretionary authority of public officers and institutions are clearly recognized and regularly enforced. In short, the Constitution effectively limits the power of government. In addition to this, Johari states that constitutionalism stands for “the existence of a constitution in a state, which is the instrument of government, or the fundamental law of the land.” It is the complex of ideas, attitudes and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law pointed out. It also refers to government conduct with and the limits set by fundamental law of the land. Constitutionalism is a modern concept that desires a political order governed by laws and regulations. It means that the government rules under the laws of a constitution, that is, it gets its power from the people it governs and is limited by those powers. Constitutionalism stands for the supremacy of law and not of the individuals. Constitutionalism is a charter of government deriving its whole authority from the governed.

It is sets out the form of the government and specifies the purpose of the government, the power of each department of the government, the state-society relationship, the relationship between various governmental institutions and the limits of the government. Furthermore, the constitution binds not only the government, but also the people, though the constitution, the people collectively commit to certain institutional procedure for managing public affairs and resolve social conflicts. The constitution not only limits the arbitrary power of government, it also prevents public administration from being poison by people’s short-term temper and passions. Constitutionalism is an institutional realization of liberalism. By constraining and regulating the government’s power through a supreme constitution, and by preserving the sovereignty of people, constitutionalism ensures that the government is limited. Further, constitutionalism does not recognize the sovereignty of the legislature. Instead, it only recognizes the sovereignty of people. Constitutionalism is about the supremacy of the constitution.

This implies that the constitution cannot be altered unless by the procedures so stipulated in the constitution, since the constitution reflects the sovereign wills of the people in a state and hence need to be safeguarded. All other laws in a country have to be in time with the constitution. If a law is not consistent with the constitution is considered null and void. This helps leaders not to because the constitution tells them to do so. Once this safeguard violation against the latter and hence the spirit of the constitution is upheld. Having stated what constitutionalism is, it is also imperative to understand what a Democratic Governance is. Democratic Governance can be understood as the capacity of a society to define and establish policies and resolve their conflicts peacefully within the existing legal order . This is a necessary condition for the rule of law along with the separation of powers and a legal system that ensures the enjoyment of individual freedoms and rights -civil, social, political and cultural.

This requires institutions based on the principles of equity, freedom, participation in decision making, accountability, and promoting the inclusion of the most vulnerable sectors of society. The culture of a democratic governance moves beyond the mere procedures of democracy and the establishment of democratic institutions. It involves promoting the sustainability of democracy which includes an enduring capacity for: the separation of powers and independence of the branches of government; the exercise of power in accordance with the rule of law; the respect for human rights and fundamental freedoms; and, the transparency and accountability of a responsible civil service, functioning at both the national and local levels. A state which identifies with the culture of democratic governance is one which welcomes a wide scope of political participation embracing a pluralistic system of political parties, a vibrant civil society and media .

Further, strong democratic institutions promote and integrate women and minorities in all levels of the Government and society as a whole. Also, a state which embodies the culture of democratic governance is one which protects the rights and dignity of children. Therefore, the promotion of the culture of democratic governance involves an integrated approach to sustainable governance for and by all the people. Going back to the matter at hand, the relationship between constitutionalism and Democratic governance to begin with is that countries with a written constitutions does not necessarily practice constitutionalism nor do they practice democratic governance. A constitutional government is a limited government, whereas most socialist constitutions, although written, do not place limits on what the government can do.

As a result of this, Democratic governance which has been said at various times to encompass the full respect of human rights, the rule of law, effective participation, multi-actor partnerships, political pluralism, transparent and accountable processes and institutions, an efficient and effective public sector, legitimacy, access to knowledge, information and education, political empowerment of people, equity, sustainability, and attitudes and values that foster responsibility, solidarity and tolerance is sometimes also not respected. However, a country without written constitution, on the other hand, may actually operate under constitutionalism and good governance. For example, the United Kingdom does not have a written document called the, but no doubt that the British government is a constitution government. Although Britain does not have a single written constitution, it has a number of documents that have constitutional force. Therefore, the entire system of government in a constitutional state is created by the constitution. The constitution defines, allows and regulates government power.

In a constitutional state, there are frequent free and fair elections in order to preserve popular sovereignty in which everyone is free to participate regardless of their political affiliation. Moreover, observance of the rule of law is also another important element to look at in a constitutional state and in Democratic governance. In this light, the rule of law is said to be the deepest tradition of any constitutional government or state that practice constitutionalism. It means that is the law of the land that rules the country and not the arbitrary will of any individual. None can claim exception or immunity from it. According to dicey in Waldron, “the rule of law embraces three distinct kindred conceptions”, this means that no man is punishable or can be lawfully made to suffer until proven guilty by the court of law.

Secondly, no man is above the law but that every man, whatever his rank or condition is subject to the ordinary law of the land. Thirdly, the rule of law determines the judicial decisions over the rights of individuals in particular cases brought before the court for example, some cases attract a lot of corruption or favoritism, where the victim is concerned thus the rule of law must be upheld. This ensures that there is protection of the citizen’s right. The consequence is that the rule of law is a fair, predictable and stable legal framework is essential so that businesses and individuals may assess economic opportunities and act on them without fear of arbitrary interference or expropriation in a democratic governance. However, this requires that the rules be known in advance, that they be actually in force and applied consistently and fairly, that conflicts be resolvable by an independent judicial system, and that procedures for amending and repealing the rules exist and are publicly known.

The other relationship of constitutionalism and Democratic Governance is the observance of human rights. Human rights in a constitutional state are provided for in the constitution. These Human rights principles provide a set of values to guide the work of governments and other political and social actors . They also provide a set of performance standards against which these actors can be held accountable. Moreover, human rights principles inform the content of good governance efforts: they may inform the development of legislative frameworks, policies, programs, budgetary allocations and other measures. On the other hand, without Democratic governance and constitutionalism, human rights cannot be respected and protected in a sustainable manner. The implementation of human rights relies on a conducive and an enabling environment. This includes appropriate legal frameworks and institutions as well as political, managerial and administrative processes responsible for responding to the rights and needs of the population.

Furthermore, separation of powers is the relationship that exists between constitutionalism and Democratic governance. In a constitutional government, there also exist separation powers among the three organs of government, that is, the executive, legislature and the judiciary . The powers and functions should be separate from each other. In Zambia for example, the executive should not interfere in the functions of the judiciary. The president being the head of the executive does not play any role in the cases being handed by the judiciary, were he even determines the outcomes of the court decisions. In this way the liberty of the individual is to be saved from the crushing authority of the state. This ensures that there is Effectiveness and efficiency in Democratic governance in that these organs of government only perform the duties that they have been assigned to do without any interference from other organs consequently producing results that meet needs while making the best use of resources, human technology, finance, nature and environment at its disposal.

In addition, the system of checks and balances supplement the system of separation of separation of powers. The system of Checks and balances rule out the abuse of power in constitutionalism and Democratic governance. Each organ acts as a check upon the other organs. Thus, the theory of checks and balances ensures that departments should share in powers of the others or exercise a certain control over their actions . For example, in Zambia, the executive authority is with the president, but it is checked by the legislature. His appointment and his decrees can be declared null and void by the judiciary on the ground of being unconstitutional. Democratic governance where Accountability is imperative in the running of government affairs, checks and balances ensures that Public officials are answerable for government behavior and responsive to the entity from which they derive authority.

The accountability of public sector institutions is facilitated by evaluation of their economic performance. The suggested specific areas of action would be in the building of government capacity through, for example, public-sector management, public-enterprise management and reform, public financial management and civil-service reform. Besides that, in a constitutionalism and democratic governance, democratic principle such as freedom of the press, speech and association are upheld. This is contained in the bill of rights enshrined in the constitution. The main aim of the bill of rights is to strengthen the right and protection functions of the constitution. In Democratic governance, the freedom of the press, speech and association are upheld by ensuring that there is equal Participation of everyone in the country. Democratic governance requires that civil societies, the press and both men and women, either directly or through legitimate representatives all have an opportunity to participate during the formulation of development strategies and that directly affected communities and groups should be able to participate in the design and implementation of programs and projects .

Even where projects have a secondary impact on particular localities or population groups, there should be a consultation process that takes their views into account. This aspect of governance is an essential element in securing commitment and support for projects and enhancing the quality of their implementation. Participation by, is key cornerstone of good governance. Participation needs to be informed and organized; including freedom of expression and speech is of best interest of the organization and society in general. In addition, constitutionalism is found in countries which either has a written constitution where, a single constitutional document, titled “the Constitution,” serves as the basic law of the political society and as the legal foundation of its government.

The entire body of fundamental law for the society is contained in a single document, as amended. Or in unwritten constitutions where no single constitutional document that contains the entire body of fundamental law governing the operation of the government. The constitutional rules which shape and determine the formal-legal nature and functioning of government in the united kingdom for example are contained in a centuries-old collection of historic documents, acts of Parliament, Common Law, constitutional customs and traditions, and long-standing political usages, or practices. Some parts of the British Constitution are written, but many more are not. This ensures there is predictability in Democratic governance as people know where they can find the Laws and policies.

These laws and polices exist to regulate society and that are applied fairly and consistently. Predictability requires the state and its subsidiary agencies to be bound by and answerable to the legal system in the same way as private enterprises and individuals. The specific area of action could be the development of predictable legal frameworks for private-sector development . In conclusion, Constitutionalism is a modern concept that desires a political order governed by laws and regulations. It means that the government rules under the laws of a constitution, that is, it gets its power from the people it governs and is limited by those powers. Constitutionalism stands for the supremacy of law and not of the individuals. It stands for the existence of the constitution in a state.