Government can’t sponsor Constitution amendment as it’s not party to it
The tumult and riots, which have characterised the debate on removal of the presidential age limit from the Constitution, suggest that we have not internalised the principles of constitutionalism as developed in mature democracies.
The term constitutionalism involves two components namely a Constitution and a body of laws and regulations made under that Constitution.
In its theoretical sense, a Constitution is a compact of the people with each other to produce a government. There is no such a thing as a compact between the people on the one side and the government on the other.
The purpose of a Constitution is to govern the government by putting limits to the power delegated to it by the people under the compact.
Thomas Paine, a distinguished commentator on the American Constitution, wrote: “Government has no right to make itself a party to any debate respecting the principles or modes of changing constitutions. It is not for the benefit of those who exercise the powers of government that constitutions and the governments issuing from them are established…. It is repugnant to the principles of representative government that a body should give power to itself.”
Two principles arise from what has been quoted: First, presidential age-limit should not have been included in the Constitution because a Constitution should only concern itself with organisation and limitation of the power delegated to the government by the people.
How this power is exercised is the role of a law made by the legislative arm of government.
The second principle is that government cannot sponsor an amendment to the Constitution since it cannot give power to itself. This point is relevant in light of Article 262 of the Constitution, which provides that ‘A Bill for an Act of Parliament to amend any provision of the Constitution….shall not be taken as passed unless it is supported at the second and third readings by the votes of not less than two-thirds of all Members of Parliament.”
The government cannot move the Bill for an amendment because it is not a party to the Constitution. Secondly, a private member of Parliament cannot move such a Bill because no law has been put in place to vest him with those powers. Such powers can only be given under the Constitution or pursuant to an Act of Parliament. Any other course would amount to unconstitutional usurpation of power.
The issue of whether the majority in Parliament can use their numerical strength to promote their self-interest under the Constitution has featured prominently in the current debates.
One of the framers of the American Constitution James Madison addressed this issue in these terms: “If two people agree to bias the interest of a third, the rights of the latter could never be referred to as the majority of three.” To restrain the passions of the majority the American Constitution set up two alternative routes for proposing constitutional amendments and two for ratifying them.
The American Constitution allows two methods of amendment, namely by passage in the House and Senate with two-thirds vote; or by passage in a national convention called by Congress in response to petitions by two-thirds of the state legislatures.
Congress then chooses the method of ratification, which can be either by vote in the legislatures of three-fourths of the states; or by vote in conventions called for that purpose in three-fourths of the states. In this way tyranny by the majority is avoided.
We need to put in place methods for ratification of an Act amending the Constitution and a law to implement the provisions of Chapter Eighteen is overdue.
Mr Mulira is a lawyer.
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