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A JOURNAL OF SOCIAL & RELIGIOUS CONCERN

Volume 17 No. 2 (2002)

Constitution making an opportunity for nation building

| CONTENTS | AFRICANEWS HOMEPAGE |

Constitutions and their preambles

Kathurima M'Inoti

Introduction

Today, constitutions of many states begin with a preamble. Among the best-known examples are the constitutions of the United States of America, Federal Republic of Germany, Switzerland, India and recently Malawi and South Africa. One of the well-known preambles, that to the Constitution of the USA, declares as follows:
We the people of the United States of America, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
For its part, the preamble to the Constitution of Switzerland invokes the name of God Almighty and inter alia resolves to strengthen liberty and democracy, independence and peace in solidarity and openness towards the world. That to the Constitution of India constitutes India a sovereign democratic republic committed to securing for all its citizens justice, liberty and equality and promotion of fraternity among them. The preamble to the Constitution of Malawi seeks to guarantee the welfare and development of all the people of Malawi and the creation of a constitutional order based on the need for an open, democratic and accountable government. That to the Constitution of South Africa expressly recognises the injustices of the past in that country and commits the Constitution inter alia to the establishment of a society based on democratic values, social justice, fundamental rights, and a united and democratic republic.

The present Constitution of Kenya has no such preamble. It starts off directly with four short declarations on the Republic, multiparty democracy, the public seal and the supremacy of the Constitution.

What then is the purport and purpose of a preamble to a constitution? Is it merely a rhetorical or pious statement of abstract ideals, objectives and aspirations or an integral part of the constitution capable of offering concrete guidance about the end to which provisions of the constitution and state power should be put? These are some of the few issues addressed in this write-up.

The Essence of a Preamble

In an ordinary statute, a preamble is a preliminary statement of the reasons which have made the passing of the statute necessary or desirable. In a constitution, the preamble serves more or less the same purpose. It sets out the general purpose behind the substantive provisions of the constitution as well as the general aims and aspirations prompting the ordination and adoption of the constitution. The objectives set out in the preamble are normally effectualised in the substantive provisions of the constitution. Thus for example, the commitment in the preamble to the Constitution of South Africa to “…establish a society based on … fundamental human rights” is effectualised in the constitution in the form of a Bill of Rights.

A preamble to a constitution has thus been defined as a declaratory, non-legal portion of the constitution, primarily addressed to the people's emotions, collective memories and dreams rather than to the rational, organisational or legal sense of the citizen; it mirrors the founders' world view, their sense of national history and future and their commitment to such principles or creeds as democracy, socialism, Islam, welfare state, planned economy or federal division of power.

In India the Supreme Court has stated that the preamble to the constitution is a key to open the mind of the makers of the constitution, which may show the general purposes for which they made the several provisions in the constitution. In short, the preamble may be perceived as the conscience of the constitution.

Whilst judicial pronouncements and other authorities have always emphasised the juridical difference between a constitution and an ordinary statute, it is interesting to note that the same authorities have tended to treat the relationship between a preamble and the other provisions of the constitution in exactly the same way as the relationship between a statute and its preamble. Thus for example, H. M. Seervai when discussing the preamble and its place in the interpretation of the Constitution of India refers his readers to “standard books on statutory interpretation”.

Canons of Interpretation

However, the wisdom of importing wholesale canons of statutory interpretation into constitutional interpretation may be questioned. Several courts, in interpreting written constitutions, have held that the constitution is a document sui generis and is to be interpreted differently from ordinary statutes. Thus for example in Minister of Home Affairs & Another v. Fisher & Another, the Privy Council in interpreting the written Constitution of Bermuda stated that “a constitution should be construed with less rigidity and more generosity than other Acts of Parliament concerned with property, succession, citizenship, etc.” The court's reasoning was based on the view that a constitutional instrument is a special document to be interpreted according to principles suitable to its particular character and not necessarily according to the ordinary rules and presumptions of statutory interpretation.

The court further stated:

A constitution is a legal instrument, giving rise, among other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used, and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the constitution commences.
The above views were reiterated by the same court in the case of Attorney General of Saint Christopher, Nevis and Anguilla v. Reynolds. The court stated that the constitution should be interpreted broadly so as to conform to the protection of fundamental rights and freedoms contained in it.

In the Canadian case of Hunter vs. Southern Inc. it was observed that one extra reason why the canons of interpreting ordinary statutes are unsuitable for interpreting the constitution is that, unlike a statute, the constitution is a document meant to endure and not amenable to frequent amendments. Justice Dickson of the Supreme Court put the argument as follows:

The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and easily repealed. A constitution by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of government power and when joined by a Bill or Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed and amended. It must therefore be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.

Is a Preamble Part of the Constitution?

There is difference of opinion whether the preamble in a constitution is part of the constitution or not. The preamble in a constitution may be said to form part of the constitution in two different senses. Firstly, the preamble may be said to be part of the constitution in the general sense that it is a part of the document or instrument called the constitution. Secondly, a preamble may be deemed to be part of the constitution in the sense that a court of law may have regard to the preamble in interpreting the substantive provisions of the constitution.

When it is asserted that the preamble is not a part of the constitution, it is meant to emphasise that the preamble is different from the other provisions of the constitution in terms of its juridical effect and enforceability.

In India some courts have held that the preamble is not a part of the constitution following the reasoning that even the preamble to the American Constitution has never been regarded as the source of any substantive power conferred on the Government of the United States or any of its Departments; such powers embrace only those expressly granted in the body of the constitution and such as may be implied from those so granted.

It is however accepted that whereas the preamble may not be used to override clear and unambiguous provisions of the constitution, it is of great important in the following instances:

  • When there are two conflicting provisions of the constitution, the provision, which accords more with the preamble, is to be preferred.
  • Where a provision of the constitution is ambiguous or is capable of two meanings, the meaning, which accords more with the preamble, is to be preferred.

In these instances, the objectives or aspirations enshrined in the preamble will be of assistance in the interpretation of the constitutional provision at issue. The preamble thus may be referred to in order to discover the intention of the makers of the constitution and to clarify the ambiguity.

The Limits of the Preamble in the Interpretation of the Constitution

When the ordinary canons of statutory interpretation are applied to the relationship between the preamble and the constitution, the following limitations of the preamble as a guide to the interpretation of the constitution become apparent:

Firstly, the preamble may not be used to override or invalidate clear and unambiguous provisions of the constitution.

Secondly, no law may be annulled on the basis that it violates an objective of the preamble unless that law is shown to violate a specific substantive provision of the constitution.

Directive Principles of State Policy

Apart from the preamble, many constitutions today contain what are called directive principles of state policy. The pioneering constitutions in this respect include the constitutions of Spain, Ireland and India.

In India the constitution expressly provides that the directive principles are not enforceable by a court of law but they are “nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles.” The following are some of the directive principles in the Constitution of India:

  • The State to secure a social order for the promotion of the welfare of the people;
  • The State to direct its policy towards securing for all citizens adequate means of livelihood, distribution of ownership and control of material resources to serve the common good, equal pay for equal work between men and women, protection of children and youth from exploitation;
  • The right to work, education and public assistance in certain cases;
  • Uniform civil code for all the citizens;
  • Separation of the judiciary from the executive.
These basic principles serve as instructions to the government about the end to which the powers conferred by the constitution must be put. The government is not free to use its power to undermine the rule of law, human rights, national unity, etc. or to pursue its own agenda. The basic principles also capture the philosophy or ideology of the constitution. They are to assist the courts in interpreting the constitution and to that extent; they control the courts or any other institution from interpreting the constitution in such a way as to subvert its basic assumptions.

In countries with constitutions embracing basic principles, the principles are not justiciable in the sense that the Bill of Rights is. However, their usefulness lies in their role as a democratic test against which the performance of the government is measured. A government that fails to implement the basic principles will have to contend with the electorate during a general election. In the same vein, the government cannot use the pretext of the unjusticiability of the basic principles to abridge other provisions of the constitution like the Bill of Rights. The basic principles should guide the government in implementing the provisions of the Constitution.

Conclusion

The present Constitution of Kenya does not have a preamble or directive principles of state policy. There is no concrete statement on the ends to which state power conferred by the constitution is to be put. The substantive provisions of the Constitution, for example, those guaranteeing fundamental rights and freedoms and such principles as the separation of powers, the independence of the judiciary, the rule of law, regular democratic elections, etc. are incomplete without preambular statements on the values and ideals that underlie and inform the constitutional provisions.

This is a major omission, which ought to be corrected in the new constitution. Preambular statements would discourage narrow and pedantic interpretations of the constitution in favour a broad value-based approach.

To a large extent, the lack a preamble or directive principles of state policy in the present constitution has contributed to the present pursuit of wasteful policies not in the interest of Kenya. Lack of basic principles such as commitment to “national unity”, “democratic governance”, “upholding of human rights," etc. make these ideals empty political slogan and deny the substantive provisions of the constitution a clear philosophical basis.


A JOURNAL OF SOCIAL AND RELIGIOUS CONCERN
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