Is it necessary for a State to be governed by a Constitution? Discuss
Table of Contentss
2Written and Unwritten Constitutions
2.2Criticisms of a Written Constitution
2.3UK’s Outlook on the Unwritten Constitution
5.1Images of the Code of Hammurabi
5.2Preamble of Kenya’s Constitution, 2010
Black’s Law dictionary defines the fundamental law as “the cardinal and organic jurisprudence of a state or province that establishes the establishments and setup of authorities, defines the range of governmental crowned head powers, and warrants individual civil rights and civil liberties.” [ 1 ] Fundamental laws are classified as written or unwritten, flexible or stiff. Although ancient Torahs have ever been at that place, the oldest known fundamental law which best exemplify the modern fundamental law is the Code of Hammurabi which was foremost discovered in 1902 but dates back every bit far as 1758 BC. The rock memorial has the penal Torahs, the jurisprudence of individuals, household jurisprudence and monetary value lists engraved on it. [ 2 ] See Appendix 5.1 on the images of the Code of Hammurabi.
The Lancaster House Conferences which were around 1953 to 1979 initiated by the British Empire in readying for its settlements towards Independence drafted Kenya’s first fundamental law. Kenya’s Political Parties and the British Parliament drafted Kenya’s first Independent Constitution in 1963. In the 1990’s international force per unit area for good administration, institutional reforms, economic decay and societal dislocation ushered the formation of the Constitution of Kenya Review Act ( 2002 ) to spearhead constitutional reforms. In the terminal, a referendum was done to follow the current Fundamental law on the 4ThursdayAugust 2010. [ 3 ]
In this research we seek to happen out:
- The difference between written and unwritten fundamental laws.
- The significance of a fundamental law to a country’s development.
2 Written and Unwritten Constitutions
Fundamental laws in general provide a normative model for administration and they take written or unwritten signifiers. The constitutional rule is entrenched in three beginnings: uses and imposts of the people ; values attributed to relevant textual constitutional beginnings and rules of international jurisprudence ratified by the province. [ 4 ] A fundamental law is of import in the administration and development of a province as it identifies with the ideals and patterns of the people, protects their involvements and precautions their rights. In this subdivision we will look at the different positions of a written fundamental law in Kenya and UK’s unwritten fundamental law.
2.1 Kenya’s Perspective
As the future legal heads in Kenya, we have the duty of construing the jurisprudence to the multitudes. To reply inquiries on why the rights of the hapless are still infringed despite the constitution’s note on equality and why educational resources, substructure and other societal comfortss are different in urbanized countries compared to rural countries?
Article 10 of Kenya’s Constitution on National Values and Principles of Governance whichinter alianegotiations of sustainable development, good administration and protection of the marginalised does non reflect such patterns in existent life. [ 5 ] Despite the reverses of the current fundamental law, Kenya still needs a written fundamental law.
The Preamble of Kenya’s 2010 Constitution outline the aims of the Constitution as compared to the old fundamental law which had no preamble. In the Preamble, the fundamental law identifies with facets of freedom and justness, cultural, cultural and spiritual diverseness, equality, democracy and regulation of jurisprudence as the rule factors enshrined in the Supreme Law. The preamble serves as a guideline to the rules that govern the democracy. See Appendix 5.2 for the preamble.
The Constitution divides powers of different province variety meats utilizing the philosophy of separation of powers. Chapters Eight, Nine and Ten of the Constitution province the rules, procedures, functions and maps of the Legislature, Executive, and Judiciary severally. The philosophy ensures balance, answerability and no province functionary misuses the power conferred to him or her.
The diverseness of the Constitution recognizes and supports Torahs made by other province variety meats and general international Torahs as portion of the Laws of Kenya. Article Two of the Constitution allows International Torahs, pacts and conventions ratified by Kenya to organize portion of the Laws of Kenya. Chapter Eight describes the constitution and function of Parliament, Senate and Nation Assembly as jurisprudence devising and jurisprudence conferring organic structures. [ 6 ]
Cultural communities like the Maasai, Turkana and Samburu in stray geographical countries experience merely fringy engagement in the societal and economic life of Kenya. The Constitution physique development through recognising and protecting marginalised groups and compensates for old losingss of under development in these countries by affirmatory action plans like particular instruction plans, entree to employment chances, plans to develop cultural values and better societal comfortss. [ 7 ]
On the same note, it protects the diverseness of different civilizations and ethnicities in Kenya by advancing different cultural and lingual patterns of the people of Kenya as seen in Article 44. [ 8 ]
The Bill of Rights ensures cardinal rights of all the people and non merely the citizens of the state. It provides resourceful information on the autonomies and rights of each and every person in Kenya including unalienable rights of human self-respect and right non to be held in bondage or forced labor. [ 9 ]
Double citizenship in Article Sixteen ensures the security and development of the people and the state through investing, economic and societal growing. For illustration the Maasai who are divided between the boundary lines of Kenya and Tanzania can profit from this new jurisprudence and it paves manner to better chances for the communities populating across the boundary lines.
2.2 Criticisms of a Written Constitution
Despite the legion advantages, written fundamental laws besides have disadvantages. One of them is that they are stiff and inflexible. Chapter Sixteen on the amendment of the fundamental law outline the directives for amendment. The process in the amendment of Torahs is complex and requires a referendum as in Article 255, a parliamentary enterprise in Article 256 or a popular enterprise in Article 257. This shows how slow and cumbersome the procedure of jurisprudence alteration is in a written fundamental law.
On the same note, the fundamental law is a papers which makes proviso for general Torahs and most of the times will incorporate loopholes which have to be corrected or improved on in certain countries. In Article 140 on the Questions as to the cogency of Presidential Elections, the fundamental law does non hold a process on how to decide any possible contention that may happen if there is no clear simple bulk victor in the Presidential Election. [ 10 ]
A written fundamental law more frequently than non, is impractical. On gender equality in Article 27 ( 8 ) of the fundamental law where two-thirds of the elective members shall be of the same gender, the contention that comes into drama is that it is hard to plan a expression that ensures that the National Assembly follows the two-thirds gender rule.Article 97 restricts the rank of the National Assembly to 290 members whereas Article 81 provinces that non more than two-thirds of the members of elected public organic structures should be of the same gender. [ 11 ]
2.3 UK’s Outlook on the Unwritten Constitution
An unwritten fundamental law is based on the norms and imposts, values, civilization, ideals, historical patterns and legal systems that a state identifies with. [ 12 ] In the UK, the fundamental law is a set of historical paperss, legislative acts, edicts, conventions, antediluvian imposts and royal privileges which include the Magna Carta ( 1215 ) , the Bill of Rights ( 1689 ) , and the European Communities Act ( 1972 ) . [ 13 ] Parliamentary sovereignty is normally regarded as the specifying rule of the British Constitution. [ 14 ] Other states with unwritten fundamental law apart from the UK are Israel and New Zealand. New Zealand’s fundamental law is a contemplation of the Constitution Act 1986 that describes its system of authorities and the Treaty of Waitangi, the founding papers of New Zealand’s Government. [ 15 ]
In unwritten jurisprudence, the ability of the Common Law to be retroactive in determination devising to new state of affairss is outlined as one of its rule strengths. Unwritten Torahs are non the subjective positions of Judgess but they are determined by legal logical thinking. The conventions, regulations and norms of the society are under the court’s legal power to use. [ 16 ]
Another point in Britain’s favor for unwritten Torahs is that the written Torahs are in wide general footings that are meant to be applicable in a broad assortment of state of affairss that by and big do non embrace all the factors or anticipate hereafter happenings. [ 17 ]
It is besides described as a carnival system which is the principle antediluvian imposts of the people as it fits into their nature and temperament by assisting in flawlessness of the Acts of Parliament as their rule constitutional and autonomous jurisprudence. [ 18 ]
However, there are downsides to the unwritten fundamental law every bit good. The critics claim that the jurisprudence must be known before its application and unwritten constitutional norms dishonour this rule. For illustration the Magna Carta is seen as the first foundational text designed to supply written warrants of cardinal rules which the Common Law utilized and supplemented these rules by instance jurisprudence. [ 19 ]
It is besides viewed as undemocratic because Judgess are non elected by the populace and as members of the elite ; their determinations are extremely in favor of the rich and undermine the rights of the minority and vulnerable groups. On the same note, Judges being the 1s who derive content to unwritten Torahs are largely accused of assuming the maps of Parliament as the organic structure responsible for jurisprudence devising. [ 20 ]
In unwritten fundamental laws it is hard to cognize what the State’s fundamental law truly is and it is quicker in doing alterations to the unwritten fundamental laws than the written fundamental laws. This is because written fundamental laws are considered as a supreme jurisprudence against which legislative assembly can be examined and amended by luxuriant processs. [ 21 ]
To sum up, in all facets a fundamental law whether written or unwritten is the cardinal rule in the administration of a state towards its development and growing. It defines the province aims and Torahs. We have seen the different types of the fundamental laws and their advantages or disadvantages.
In our position, the type of fundamental law used by a state mostly depends on societal and economic factors every bit good as the degree of development of the people. We feel that for Kenya, the current fundamental law reflects the demand for the people, Fosters better development and economic growing and chances for Kenyans. On the negative facets cited, possibly the counterpoison is for experts in constitutional jurisprudence to maintain rewriting and honing the Torahs to do them more adaptable to societal alteration and development.
4.1 Primary Beginnings
The Constitution of Kenya
The Judicature Act Cap. 8 Laws of Kenya
4.2 Secondary Beginnings
— ‘Kenya ‘s New Constitution Benefits Indigenous Peoples’ ( Cultural Survival, 10 August 2010 ) & A ; lt ; hypertext transfer protocol: //www.culturalsurvival.org/news/kenya/kenyas-new-constitution-benefits-indigenous-peoples & A ; gt ; accessed 10 March 2014
— ‘What is the UK Constitution? ’ & A ; lt ; hypertext transfer protocol: //www.ucl.ac.uk/constitution-unit/whatis/uk-constitution & A ; gt ; accessed 5 March 2014
— ‘New Zealand’s Constitution’ & A ; lt ; hypertext transfer protocol: //gg.govt.nz/role/constofnz.htm & A ; gt ; accessed 5 March 2014
— Kenya – Country Constitutional Profile’ , Constitution Net & A ; lt ; hypertext transfer protocol: //www.constitutionnet.org/country/kenya-country-constitutional-profile & A ; gt ; accessed 7 March 2014
Black’s Law Dictionary ( 9th edn, West 2009 ) .
Kadida J, ‘Kenya: Attorney General Rushes to Seal Election Law Loophole’ ( The Star, 10 October 2012 ) & A ; lt ; hypertext transfer protocol: //allafrica.com/stories/201210110139.html & A ; gt ; accessed 10 March 2014
McLachlin B, ‘Unwritten Constitutional Principles: What is traveling on? ’ ( 2006 ) 4 NZJPIL 147
Sihanya B, ‘Constitutional execution in Kenya, 2010-2015: Challenges and prospects’ ( Friedrich Ebert Stiftung ( FES ) Revised 5 December 2012 ) & A ; lt ; hypertext transfer protocol: //library.fes.de/pdf-files/bueros/kenia/09857.pdf & A ; gt ; accessed 10 March 2014
The Editors of Encyclop?dia Britannica, ‘cuneiform law’ , Encyclop?dia Britannica Online. ( 2014 ) & A ; lt ; hypertext transfer protocol: //www.britannica.com/EBchecked/topic/146555/cuneiform-law # ref718884 & A ; gt ; accessed 5 March 2014
Bruno walters M, ‘Written Constitutions and Unwritten Constitutionalism’ in Grant Huscroft ( erectile dysfunction ) ,Elaborating the Constitution ; Essaies in Constitutional Theory( Cambridge University Press 2014 )
5.1 Images of the Code of Hammurabi
Figure 1 – The Code of Hammurabi.It shows the male monarch before the God Shamash, displayed in the Louvre, Paris.
Beginning: Encyclopedia Britannica
Figure 2 – Inscriptions of the Hammurabi Code in 1758 BC in the Akkadian Language.
Beginning: Encyclopedia Britannica
5.2 Preamble of Kenya’s Constitution, 2010
Figure 1 – The Preamble of the Constitution of Kenya 2010 outlines the aims of the fundamental law. The 1963 Constitution has no Preamble.
5.3 Research Techniques
Meeting 1: Brainstorming on what is a fundamental law, different attacks to the inquiry, aims of the Question, pull an lineation for the subject and Summary of Points.
Meeting 2: General Research.Each member had to make a general research on the fundamental law and how it governs a state. Identifying secondary beginnings in cyberspace hunt engines and Newspapers on the fundamental law, placing illustrations for comparative analysis. A comparative analysis was done between Kenya’s written fundamental law and UK’s unwritten fundamental law.
Developing a hypothesis and explicating an statement by replying the aims of the inquiry.
Duty List:Sub division of responsibilities and activities to be done harmonizing to single strengths.
- Daniel: Introduction, Definition, History, Examples. Word count 250
- Rachel and Joan: Advantages, Examples. Word Count 1000
- Emmanuel: Disadvantages Examples. Word Count 500
- Marcus: Decision, Bibliography, Examples. Word count 200
- Swabra: Examples, overall content, Research Techniques, Editing, cogent evidence reading and concluding transcript of the essay.
Meeting 3: Submission of bill of exchanges by each member. Verifying cogency and dependability of beginnings and rightness of information: all beginnings verified for genuineness, currency and authorization.
Mentions:Checking for consistence with OSCOLA 4Thursdayedition.
Meeting 4:Critique, Review, Re-editing and Mock Presentation.