Lack of Adequate Security is another area where constitution without constitutionalism has taken toll on Africa. The machinery of law enforcement is definitely weak and as long as the police force is weak in terms of workforce and training, violence and insecurity will continue to thrive. Furthermore, where security agents are taking sides, compromising their position, violence will be inevitable because people will lose confidence in them to protect their interest and therefore take laws into their hands.
The situation in most African countries is so worst to the extent that the violence is being perpetrated in the presence of military and police personnel or by the military and police personnel themselves.
They aid and abet well placed individual in the society who committed political violence and go unpunished while punishing others who committed the same crime but are less powerful members of the society, thereby increasing the problem of political violence in the society.
Instances of brutal killings in election period are numerous. The most tragic and disturbing aspect of the incidents is that these incidents in most cases either happened in the presence of policemen and soldiers or immediately reported to them, we just discovered that no arrest would be made and no investigations would be carried out.
The scenario created from the various incidents recorded so far gave the impression that some persons were ceasing the opportunity of this unconstitutionality to destroy lives and properties of most Africans.
Lack of adherence to the rule and regulation laid down in the constitution has led to the emergence of ethnic militias in some countries in Africa, for example in Nigeria; the ethnic militias converse verbally and even openly on the state of nation. Some even went to the extent of engaging in confrontation with the state security forces in pursuance of their goals and objectives; they have different goals and aspirations.
For example, the movement for the survival of Ogoni people MOSSOP is out to protect the interest of the Ogoni, most especially the oil exploitation and environmental degradation of their land. The Egbesu boys of Africa came up to fight the environmental degradation and exploitation of the Niger Delta by the multinational oil corporations. The failure of the police to check the menace of armed robbery in the south-east led to the formation of Bakassi Boys. But because the ruling government failed to do the right thing the next thing for the rebel is to take arms against the ruling power.
This has resulted into serious war in many countries in Africa. The aggrieved individuals felt marginalized and they thought that the best way to make their grievances known to the public is through violence. In Africa, years of economic exploitation, mal-development and bad governance have continued to fan the ember of conflicts and crises in the continent. The violence they spawn comes from manmade barriers on the part of smooth electoral processes. Beyond constraints of funds, manpower and other logistics, obstacles to health electoral processes emanate from the inordinate ambition of the political elite to win elections at all cost.
To achieve their goal, they manipulate the constitutive and regulative instruments for credible electoral contest. All institutions and agencies of government are used by those in possession of state power and authority to remain in government. Because of the premium on power everything is mobilized to remain in power against the will of the electorates.
Where the ballot box containing the preference of the governed, cannot bring about the transfer of political power from one party to another in a peaceful manner, then democracy liberal or not is in grave danger. A political system whether it has a formal constitution or not, will reflect the principles of constitutionalism only when its powers and institutions are limited to the terms of the constitution which reflect the foundational principles of commission and trusteeship.
To implement this standard, a constitution that reflects the principles of constitutionalism will serve as a higher law. This higher law establishes and limits government in order to protect individual rights. So, the value of a constitution with constitutionalism lies in the fact that it gives meaning to the relationship between the state and the citizens and this invariably brings about the much needed social order.
Thus, the foundation of a sustainable social order in any society is based on the cordial relationship between the state and the citizens as established by the constitution. When the enabling environment is visible, there will be an efficient social contract. It provides a situation, where people are more tolerant of one another to live happily. It is a transformational agreement built on trust, providing a place where citizens can become fully human by having an identity that is rooted in respect for others.
In this regard, any constitution without constitutionalism may create a disconnection between the state and the citizens, making it increasingly difficult for the citizens to rely on the state. For Africa to move forward there is the need to move toward constitution with constitutionalism.
The government take necessary action on any person that fail to comply with rules and regulations that may result in disorderly behavior and impunity within the state.
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Withdrawal Guidlines. Publication Ethics. Withdrawal Policies Publication Ethics. Review Article Volume 2 Issue 5. Constitution and constitutionalism There is a distinction between a government with a constitution and constitutionalism and a government with constitution without constitutionalism. The effect of constitution without constitutionalism Political problems: They relate to actions and in-action on the part of those who are in authority.
Probabilistic integrated risk assessment of human exposure risk to environmental bisphenol A pollution sources. Environ Sci Pollut Res. Bila DM, Dezotti M. Bisphenol A exposure, effects, and policy: A wildlife perspective. J of Environ Management. Witorsch RJ. Endocrine disruptors: can biological effects and environmental Risks be predicted?. Regul Toxicol Pharmacol.
Dodds EC, Lawson W. Synthetic estrogenic agents without the phenanthrenenucleus. Bisphenol A, nonylphenols, benzophenones, and benzotriazoles in soils, groundwater, surface water, sediments, and food: a review. Environ Sci Pollut Res Int. Bisphenol-A: an estrogenic substance is released from polycarbonate flasks during autoclaving, Endocrinology. Evaluating the impacts of some environmentally relevant factors on the availability of bisphenol-A with Negligible-depletion SPME.
Dose-Response: an International Journal. Crystallization behavior and rheological properties of polycarbonate and polypropylene blends. Polym Eng Sci. Composites Science and Technology. Migration of chemical compounds from packaging polymers during microwave, conventional heat treatment, and storage. Standard Methods for the Examination of Water and Wastewater.
Washington : Byrd Prepress Springfield; Washington: APHA; Manual on Industrial Water and Industrial Wastewater. STP 70B. New Jersey: Wiley; Journal of Applied Sciences. Study of thermal and morphological properties. Journal of Chilean Chemical Society. Ecological Engineering. Acta Limnol Bras. Moreover, even if there is agreement about some core norms e. Of course, questions of authorship and authority appear in every legal order and are thus as such not specific for international constitutionalism.
However, given the lack of a thick political community at the international level, they do get specific meaning and force in relation to international constitutionalism. International constitutionalism, as Walker rightly points out, does not rest on a clearly identifiable polity in which it is applied and reinvented.
Rather, international constitutionalism grows out of a multitude of sources, including rulings of domestic courts, rulings and advisory opinions of international tribunals across different functional fields, customary law, scholarly writing, non-compliance proceedings, decisions of international organizations in different specialized fields, etc.
Moreover, it is invoked and applied by different actors that they often have very different views on the meaning of constitutional provisions in concrete circumstances. In that sense, international constitutionalism is as much an attempt to create unity in international law as it is a reinforcement of the fragmentation of the international order. In the same fashion, it is as much an attempt to contain international politics as it is the source of more intensified political struggles.
Is democracy the answer to the incompleteness, shortcomings and paradoxical effects of international constitutionalism? Not necessarily. While the problem of incompleteness already poses problems for democracy at the domestic level, it appears even more pronounced at the international level.
The question who counts already raises fundamental questions for democracy at the national level, as Walker has aptly demonstrated in his paper. At the fragmented international level, however, those challenges tend to get multiplied. Here, the question of membership is not linked to a unified and territorially bounded polity, but to a dispersed series of specialized regimes, such as the economic regime, the environmental regime, the human rights regime, the international criminal law regime, etc.
Who should count as the relevant members of such regimes? Is it the contracting States, the citizens of the contracting States, those affected by the functioning or malfunctioning of the regime? What is the relation between democracy at the international level and already existing democratic institutions at the national level? And what if international institutions e. Should such members be excluded, with potentially detrimental consequences for the effectiveness of the regimes concerned?
Even if those problems could be handled in some way or another, the fragmented structure of contemporary international relations gives rise to further complications.
What if the members and stakeholders of the different regimes partly overlap and there is a need for a balancing of interests? Here, issues of membership get mixed up with issues of boundary setting.
At the domestic level, as Walker explained, issues of boundary setting are about the territorial delimitation of the polity and the question what is outside the scope of democracy. At the international level, however, boundary setting is also about the functional delimitation of the legal and political regime as such: what are the boundaries of the economic regime, what falls within the sphere of the environmental regime, the human rights regime, the security regime, etc.
More often than not, concrete societal problems will not fall neatly within one regime or another but contain several aspects — economic, diplomatic, environmental, human rights, security, etc. Instead, decision-making takes place in functionally differentiated regimes that are biased by design and that translate societal problems into specific expert vocabularies.
What happens if such specialized regimes get more democratized and thus gain stronger legitimacy? In the unlikely case that all functional regimes increase their democratic credentials equally, one of the side effects would most probably be that the fragmentation of international law is deepened.
To paraphrase Klabbers, the various democratically legitimized regimes will then be locked firmly in their democratic place — and in battle with each other. Another possible scenario is that some regimes are more successful than others in upgrading their democratic legitimacy.
This all is not meant to argue that we should give up our attempts to make international regimes more accountable and more open to diverging perspectives on the existence and concrete application of constitutional values. As Walker rightly argues, international constitutionalism is incomplete and cannot function in isolation from discourses that are situated in real existing polities.
The incompleteness of international constitutionalism, however, is quite a complicated problem that cannot be solved by transplanting traditional notions of democracy to the international realm. Rather, it requires a search for alternative forms of accountability and representation that do justice to the decentralized, multi-level and functionally fragmented nature of international society.
Moreover, it requires a frank recognition that the incompleteness of democracy and constitutionalism can never be fully remedied — and that attempts to do so may even be counterproductive. It shows that the gap between democracy and constitutionalism can never be fully closed since there is an insoluble tension between the two.
This opens up space to rethink the relation between democracy and constitutionalism in contexts that are quite different from that of the nation-state. At the same time it makes us aware that such endeavours have their limits.
Constitutionalism recognizes the need for government with powers but at the same time insists that limitation be placed on those powers.
The antithesis of constitutionalism is despotism. A government which goes beyond its limits loses its authority and legitimacy. Constitutionalism-In Minimal And In Richer Sense In some minimal sense of the term, a "constitution" consists of a set of rules or norms creating, structuring and defining the limits of, government power or authority.
Take the extreme case of an absolute monarchy, Rex, who combines unlimited power in all three domains. If it is widely acknowledged that Rex has these powers, as well as the authority to exercise them at his pleasure, then the constitution of this state could be said to contain only one rule, which grants unlimited power to Rex.
Whatever he decrees is constitutionally valid. When scholars talk of constitutionalism, however, they normally mean something that rules out Rex's case. They mean not only that there are rules creating legislative, executive and judicial powers, but that these rules impose limits on those powers. In this richer sense of the term, Rex's society has not embraced constitutionalism because the rules defining his authority impose no constitutional limits. Constitutionalism has prescriptive and descriptive uses.
Law professor Gerhard Casper captured this aspect of the term. Used descriptively, it refers chiefly to the historical struggle for constitutional recognition of the people's right to 'consent' and certain other rights, freedoms, and privileges….
Used prescriptively … its meaning incorporates those features of government seen as the essential elements of the … Constitution. Bill of Rights.
While hardly presenting a "straight-line," the account illustrates the historical struggle to recognize and enshrine constitutional rights and principles in a constitutional order. Prescriptive use In contrast to describing what constitutions are, a prescriptive approach addresses what a constitution should be.
As presented by Canadian philosopher Wil Waluchow, constitutionalism embodies "the idea … that government can and should be legally limited in its powers, and that its authority depends on its observing these limitations.
In discussing the history and nature of constitutionalism, a comparison is often drawn between Thomas Hobbes and John Locke who are thought to have defended, respectively, the notion of constitutionally unlimited sovereignty e.
But an equally good focal point is the English legal theorist John Austin who, like Hobbes, thought that the very notion of limited sovereignty is incoherent. But no one can "command" himself, except in some figurative sense, so the notion of limited sovereignty is, for Austin and Hobbes , as incoherent as the idea of a square circle. Austin says that sovereignty may lie with the people, or some other person or body whose authority is unlimited.
Government bodies - e. But if we identify the commanders with "the people", then we have the paradoxical result identified by H.
Hart - the commanders are commanding the commanders. Entrenchment: According to most theorists, one of the important features of constitutionalism is that the norms imposing limits upon government power must be in some way be entrenched, either by law or by way of constitutional convention. Entrenchment not only facilitates a degree of stability over time, it is arguably a requirement of the very possibility of constitutionally limited government.
Were a government institution entitled, at its pleasure, to change the very terms of its constitutional limitations, we might begin to question whether there would, in reality, be any such limitations. Written ness: Some scholars believe that constitutional rules do not exist unless they are in some way enshrined in a written document.
Others argue that constitutions can be unwritten, and cite, as an obvious example of this possibility, the constitution of the United Kingdom. Though the UK has nothing resembling the American Constitution and its Bill of Rights, it nevertheless contains a number of written instruments which arguably form a central element of its constitution.
Magna Carta A. Written constraints in the constitution, however, are not constraining by themselves. Tyrants will not become benevolent rulers simply because the constitution tells them to. In order to guard against violations against the letter and spirit of the constitution, there needs to be a set of institutional arrangements. Louis Henkin defines constitutionalism as constituting the following elements: 1 government according to the constitution; 2 separation of power; 3 sovereignty of the people and democratic government; 4 constitutional review; 5 independent judiciary; 6 limited government subject to a bill of individual rights; 7 controlling the police; 8 civilian control of the military; and 9 no state power, or very limited and strictly circumscribed state power, to suspend the operation of some parts of, or the entire, constitution.
Broadly speaking, Henkin's nine elements of constitutionalism can be divided into two groups, one concerns power construction and power lodging; and the other deals with rights protection. These two groups of institutional arrangements work together to ensure the supremacy of the constitution, the existence of limited yet strong government, and the protection of basic freedom.
Authoritarian governments are by their very nature unconstitutional. Such governments think of themselves as above the law, and therefore see no necessity for the separation of powers or representative governance. Constitutionalism however, is primarily based on the notion of people's sovereignty, which is to be exercised--in a limited manner--by a representative government.
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