TITLE

CONSTITUTIONAL LAW
Dr. William NKUBITO

6/25/2021 Course Code & Name 1

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The objective of the course
 The objective of the course is to investigate
the different theories with regard to
constitutional law and evaluate which one is
most applicable within the Rwandan context.

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 Content of the course
This course aims at helping students to acquire knowledge in
the field of the constitution of the state such as:
 Notion of the constitution (different kinds of constitutions);
 Rwandan constitution: status, procedures for adoption,
amendment, etc.;
 Fundamental principles of constitutional law;
 Concepts about the state;
 Political regimes;
 Branches of government and balance of powers
(legislative, executive and judiciary power);
 Political institutions;
 Independent administrative authorities (Office
of Ombudsman, the office of the Auditor-General
of State finances, Gender monitoring office)
 National commissions (National commission for
human rights; National Unity and
reconciliation commission; National Commission
for the fight against genocide; National electoral
commission; Public service commission).
 Etc.
 CHAPTER ONE: GENERAL
INTRODUCTION
Constitutional law is that part of the public
law which relates to the system of government
of the country. It means those laws which
regulate the structure of the principle organs
of government and their relationship to each
other and to the citizen, and determine their
main functions. It is the law relating to the
constitution of the state.
 Constitutional law includes the rules governing the constitution
of the legislature, the executive and the judiciary; the powers,
appointment and removal of the head of the state; the election,
powers and privileges of the members of the legislature; the
position of the ministers (executive) and judges (judiciary);
citizenship; civil liberties and the protection of individual rights.
 The benefits that befall a society from constitutional law are:
 it limits governmental power to protect individual
liberties,
 it clarifies the roles to reduce disputes between
governmental parties, and
 it is committed to the principles of democracy and the
dignity of the individual
 Constitutional law and similar branches of law and
sciences
o Constitutional law and administrative law
 Administrative law can be defined as a set of legal
rules which aim to regulate the organization, the
functioning and the control of the executive.
 Administrative law determines the organization,
powers and duties of administrative authorities.
 It is concerned with the work of official agencies
(civil servants) in providing services and in regulating
the activities of citizens.
 Administrative law covers those rules of law which
relate to the government’s executive power, its control
and privilege.
 It also deals with and sanctions the exercise of
governmental power.
 In other words, it deals with the relations between
officials and citizens and the ways in which people can
object to official decisions and make them sanctioned.
 Thus, like constitutional law, administrative law deals
with and sanctions the exercise of governmental power.
 The two branches are however distinct: the Constitutional
law is mainly concerned with the structure of the primary
organs of government, whereas administrative law is only
concerned with the work of official agencies (servants) in
providing services and in regulating the activities of citizens.

 The rules governing the organization, powers and actions of

the supreme executive organs (the state president and the
cabinet), the rules governing relations between the organs
and the supreme legislative and judicial organs (parliament
and the judiciary) and relations at the highest level with
foreign governments and their representatives, and
citizenship (all falling within foreign scope of constitutional
law).
On the other hand, The rules governing the
organization, powers and actions of the
administration, are in charge of
administrative law.
 o Constitutional law and public international
law
Public international law is that system of law whose
primary function is to regulate the relations of
states with one another. International law thus
deals with the external relations of a state with other
states; constitutional law deals with the legal
structure of the state and its internal relations with
its citizens and others present in its territory.
 Rwanda is known as a monist State, meaning that
international law is applicable directly within the
domestic legal system. As a result, international treaties
to which it is party are part of its domestic law,
although treaties have to be published in the Official
Gazette before they be accorded force in domestic law
(art. 165 of the Rwandan Constitution).
 Some States known as dualist States separate
international and domestic law, and require that
international treaties be implemented by specific
legislation for them to have effect in the domestic legal
system.
 In the dualist tradition, national and international
law operate at two distinct levels; both are
concerned with state power but they are
necessarily connected.
 In this regard, one important branch of
constitutional law is the national law relating to a
government’s power to enter into treaties with
other states and thus to create new international
obligations.

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 For example, the procedure of extradition, by
which a criminal who escapes from one state to
another may be sent back to the state in which
the crime was committed, operates both in
international and constitutional law: the
government of a state which is party to an
extradition treaty must equip itself with the
powers necessary in national law (i.e.
constitution) if the state is to be able to fulfil its
treaty obligations.
 o Constitutional law and political science
 The political science has close links with
constitutional law: Both are concerned with the
state; but constitutional law relates to the law
governing the way in which the state is run,
while political science is concerned with topics
such as governmental structures and more
specifically, the influences of social,
psychological and economic factors on
governmental functions.
 KEY BASIC CONCEPTS IN THE
CONSTITUTIONAL LAW

o Democracy and accountability

 A government can only be legitimate if it has the
consent of the majority of people falling under such
government.
 This is in line with the traditional view of democracy
which requires a government of the people, by the
people and for the people.
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The concept of democracy can also be traced to two greek
words namely demos (people) and kratos (power/strength).
Combined, the words refer to the power of the people.
The concept originated from the idea that no person or
institution has a divine right to govern over others: A
government can only be legitimate (valid) if it has the
consent of the majority of people living under such
government.
In this regard, democracy presupposes free political
expression and the right of all to take part in political
decision-making.
 Thus, democracy means the power or strength of the
people. In a democratic system, the power to govern is
not vested in one person (a monarch) or in a small
group of persons (an aristocracy) but in the people of
the state.
 A democratic state is one where government is
accountable to the people through free and fair elections
to public office; adults have equal rights to vote and
stand for election; civil and political rights are respected
and a form of civil society can function where social
associations, independent of the state, exist.
 o The principle of constitutionalism
 The term constitutionalism symbolizes a state
that is founded on the law.
 The principle requires that the government of a
state should derive its powers from the law,
which is to be found in the form of written
constitution, and further that such government’s
powers should be limited to those powers that
are set out in that constitution.
 The concept of constitutionalism has two themes.
The first is the existence of limitations imposed on
the state in its relations with citizens.
 The second is the existence of a mechanism to
enforce these limitations: The government
exceeding its limitations has to be held accountable.
 The power must be found in the form of
constitution, and such government’s powers should
be limited to those powers that are set out in that
Constitution.

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 Different approaches to constitutionalism
o Traditional approaches: Procedural & negative
constitutionalism
 The traditional approach is based on the notion of
limitation of state power by means of law. The focus
here is on the extent to which the constitution is
meant to limit the damage a state can do to
individuals in its procedures.
 Constitutionalism as defined is therefore a negative
one.
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o Modern approaches: Substantive and positive
constitutionalism
 Unlike the traditional conception with its
overemphasis on procedure and restraint, modern
approach supports substantive and positive
constitutionalism.
 Thus, in order to give effect to democratic values, the
state should be more effective and more active and be
given more powers than under negative
constitutionalism, because it is required to take action.

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 • The principle of a constitutional state
 The principle of a constitutional state is similar to the
principle of constitutionalism. The concept has originated
from German constitutional law and it is said to embody
everything that is good in a State.

 This is includes many other constitutional principles

including the separation of powers doctrine, the supremacy
of the constitution, the principle of legality, access to
independent courts, enforceable fundamental rights and
multiparty democratic government. In a constitutional state
the law is supreme and the state is also bound by the law.
 The constitutional state has three purposes:
 To provide security:
 It is the task of the state to ensure the citizen freedom
from fear.
 This purpose of the state justifies its monopoly on
the exercise of authority. It must have more authority
than the individual and private institutions.
 To ensure the liberty of the individual:
 The state must be capable of protecting the individual’s
liberty better than he can do it himself.
 The power of the state may not exceed what is required
for the promotion of the public good. The state’s
function justifies only the limitation of freedom, not its
destruction.
 The instruments developed for this purpose include the
separation of powers, legality of the administration,
independence of the judiciary and human rights.
 To guarantee a minimum standard of social
security:
 The constitutional state’s function of protecting
society led to a new fear founded upon the
economic risks of social life, thus generating this
“new” purpose.
 • The principle of the rule of law
 The principle of the rule of law further mandates that the
government must act and exercise its powers in accordance with
the law and must also obey and adhere to the law.
 No one is above the law and every body or institution, including
the state, is subject to the jurisdiction of the courts.
 In this definition are 3 elements absolutely essential to the rule
of law:
• Judicial control of the legality of administrative acts
• Judicial control of the constitutionality of laws and
• The independence of the judiciary.
 The rule of law is said to prevail in a state when
all individuals and institutions are subject to the
law and no person or institution is above the law.
 Indicators) of the rule of law include:
The law must be accessible, clear and
disputes should be resolved by application of
the law and not the exercise of discretion
(arbitrariness).

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 The laws should apply equally to all, save to the
extent that objective differences justify
differentiation.
 The law must afford adequate protection of
fundamental rights.
 Ministers and public officers must act within the
limits of their powers.
 Adjudicative procedures provided by the state
should be fair and the state must comply with its
obligations under international law.
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 • The doctrine of separation of powers
 The doctrine of separation of powers or trias politica as it is
also known is fundamental to many constitutional systems.
 The doctrine was developed by the elaborate French
political philosopher MONTESQUIEU on his celebrated
book “L’esprit des lois”.
 According to the doctrine, governmental powers are
divided into legislative powers, executive powers and
judicial powers.
 Each of the different powers is exercised by specific bodies
of state, namely legislative bodies, executive bodies and
judicial bodies.
 The main purpose of the doctrine is to prevent
the excessive concentration of governmental
powers in one person or body of the state.
 The theory of the separation of powers does
not favour the free functions of government,
being distributed between. three independent
institutions without some overlapping or co-
ordination.
 Such an arrangement would prevent good
government. By separating the organs of
government, limited power is conferred on such;
thus no organ is possessed of unlimited power.
 Abuse of power by one can be checked by the
others and tyranny is prevented.
 This doctrine is more than a mere political
theory; it is one which has considerable
constitutional importance.
 The legislative organ: It is a law-making
body.
 The executive: It is the law enforcement or
implementing body.
 The Judiciary: It has as main functions:
 To interpret laws (e.g. Supreme Court);
 To guarantee the constitutionality of laws;
 To render justice in the country.

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Question: Between the Legislative and Executive
Power, which of the two should monitor the
other?
 The legislature should monitor the executive.
This because the legislature represent the
state’s citizens while the executive represent
the State’s government.

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 CHAPTER TWO:
THE SOURCES OF CONSTITUTIONAL
LAW
"Every act of a delegated authority, contrary to the tenor of the
commission under which it is exercised, is void. No legislative
act, therefore, contrary to the Constitution, can be valid. To deny
this, would be to affirm, that the deputy is greater than his
principal; that the servant is above his master; that the
representatives of the people are superior to the people
themselves; that men acting by virtue of powers, may do not only
what their powers do not authorize, but what they forbid.“
- Alexander Hamilton
 Five main sources can be identified within the
domain of constitutional law. They are
constitution, organic laws, ordinary laws,
constitutional custom and jurisprudence.
  THE CONSTITUTION
 The constitution is the most important
statutory source of constitutional law.
 The constitution of a country (in a legislative
format) is a law that contains the most
important rules of law in connection with the
constitutional system of that country.

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 The Constitution is the supreme law of the country.
 By definition the rules contained in the constitution
are considered to be basic, in the sense that, until
they are modified according to an appropriate
procedure, all other rules must conform to them.
 Thus, any law, decision or act contrary to the
Constitution is without effect.
 The constitution articulates the principles
determining the institutions to which the task of
governing is entrusted, along with their powers.
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 A country’s constitution is a product of its unique history
and its contemporary political situation. In other words, the
historical background of each State influences the making of
its constitution.
 A constitution is not the act of a government, but of people
and a government without a constitution is power without
legitimacy.
 In order to enjoy its supremacy, a constitution must be in
writing, must be entrenched in so far that it cannot easily be
amended and the courts must be vested with the necessary
powers to enforce and protect the constitutional provisions.
 The content of constitutions
 The content of constitutions differs from state to
state but most of them contain provisions that:
 set the main fundamental principles on which
the governance of the State is built;
 regulate the structure of the principle organs of
government, their functions, their duties;
 set the fundamental rights and duties of
individuals within the State.

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 In Rwanda, the constitution is supreme, it is entrenched
and the courts are vested with the power to test any
actions of government against constitutional validity.
Even executive authority is subject to the constitution.
 There are various ways whereby higher status can be
conferred to a constitution of a state. The three most
useful are:
 Entrenchment: to entrench a constitution is to make it
more difficult to amend than ordinary laws. The
constitution therefore is stronger protected and has
higher status.
 Enforcement: the constitutional provisions must be
enforceable. In this regard the role of the courts is very
important. In Rwanda, the Supreme Court is vested
with the power to invalidate laws that conflict with the
constitution.
 Special adoption procedures: through special
adoption procedures, thus special procedures for its
enactment and acceptance, a constitution can be given
higher status than other legislation.
 A further purpose of special constitution, making arrangements is
to ensure the support of the people (e.g. referendum)and by that
also the legitimacy of the constitution.
  Characteristics of the constitution
• Constitutional reality: A part it is an expression
of the will of the people, the true constitution is,
according to this view, to be found in the power
structures and relationships within the state.
• Constitution is an all-embracing
organizational embodiment: The constitution
is an all-embracing organizational embodiment
of the system of government.
• Constitution is a continuous dialectical
process: The constitution is dynamic. It is
not like a contract in private law which must
be rigidly interpreted and applied within a
narrow framework. It can grow to
accommodate the changing needs of the
community it serves.
 The classification of constitutions
o Written /unwritten constitutions
 A constitution is categorized as a written one when
its most important governing principles are
specially enacted.
 This is however a question of degree. Most of states
have written constitutions in the narrow sense of
the word, the notable contemporary exceptions
being United Kingdom, Israel and New Zealand.
 But, the law of the constitution in those countries can be
found in writing, in statutes, law reports, parliamentary
standing orders, works of authority, and so on; although an
authoritative and reasonably comprehensive document
called “constitution” is lacking.
 It is however, not feasible or indeed desirable for a written
constitution to contain every law and detail of state’s
constitutional dispensation.
 A written constitution therefore only contains a selection of
constitutional laws and is supplemented by organic laws,
other legislation, judicial decisions, interpreting the written
constitution....
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 o Flexible and inflexible constitution
 Flexibility of a constitution refers to the fact that
the constitution can easily be amended. The
more rigid a constitution is, the more difficult to
amend such constitution.
 Rigidity also provides the fact that the
constitution is supreme law of a state.
 The Rwandan constitution can be regarded as an
inflexible constitution, which is also the highest
law of the state.
• In Rwanda, the power to initiate amendment of the
constitution is vested concurrently in the President
of the Republic upon the approval of the cabinet
and each Chamber of the Parliament upon a
resolution passed by a two thirds (2/3) majority vote
of the members of each Chamber of Parliament.
• The amendment or revision of the Constitution
requires a three-quarters (3/4) majority vote of the
members of each Chamber of Parliament. (Art.
175).

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o Single or multi-document constitutions
 Most modern constitutions are contained in one single
document. In practice however, many other laws play
an important role in the constitutional system of a state.
 Thus a constitution should always be studied together
with such other laws.
 The Rwandan constitution is contained in one single
document but even the constitution itself envisages
other laws to supplement the constitution (organic
laws).

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o Autochthonous & allochthonous constitutions
 An autochthonous constitution is regarded as a
home-grown document while an allochthonous
constitution is of foreign origin.
 The Rwandan constitution can be classified as an
autochthonous constitution, because all the
local , historical, political, social and economic
circumstances were fully recognized in the
constitution.
o Constitutions prefaced and constitutions not
prefaced by a preamble
 Constitutions are usually introduced to readers by
way of their preambles.
 A preamble is a solemn declaration which states the
basic purpose of the constitution. Its provisions are
not binding, but may serve as guide to the
interpretation of the constitution.
 Most of them however, try to explain by whom and
under what circumstances the constitution was drawn
up.
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 The elaboration and the revision of a
constitution
 When a State has no constitution while it has to built up
itself, it is necessary to elaborate a constitution which
will be at the origin of the State or of the new regime.
 This power of elaboration of a constitution is called the
“original constituent power”
 When on the contrary, a constitution is effective and it
is considered not necessary to replace it but only to
modify it, it is done according to rules established by
the very same constitution.
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 Every constitution foresees how it will be
modified. This power of modification which
ensues from the constitution is called “derived
constituent power”.
 Thus, while the original constituent is not
provided by a law, the derived constituent power
must be provided by the constitution elaborated
by the former.

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o The elaboration of the constitution by the
native/original constituent power
 Whether it is during the creation of a State or during the
establishment of a new regime, it is the individuals who
hold the power who will decide freely on modalities of
elaboration of the constitution.
 The characteristic of the original constituent power, it
is because it is conditioned by no rule. In other words,
the more or less democratic character of the procedure
will depend only on the will of the government in place.

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 We distinguish four modalities which go from the least democratic
to the most democratic:
 The first modality, the least democratic, consists, for a monarch, in
elaborating himself a constitution which he grants to his subjects
without consulting them. Constitutions so granted are called
charters. This system coincides with the theory of the royal
sovereignty.
 The second modality of the elaboration of the constitution seems
more democratic but it is always an illusion. The individual in the
power always elaborates himself the constitution and makes it
approve by the referendum. It is not really democratic because the
constitution is drafted by the individual in the power and the
referendum is like a pressure exercised on the people. It is the
approval of a man rather than the ratification of a text.
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 The third modality is really democratic. The people elect an assembly
which will specially be in charge of elaborating the constitution. The
debates of the assembly are public and each can be made an opinion.
The assembly loaded with the work is called an “agreement” in the
American terminology and the “constituent assembly” in the French
terminology.
 The last one is the most democratic. It consists for the people, to elect
an assembly to draft the constitution and then, when the assembly
made its work, to ratify this work by a referendum. This one is not as
the second considered as a pressure exercised on the people. The
difference that it has is that the people pronounce on a text by which
he followed the drafting through the debates of the assembly.
 Rwanda recently imitated this example even if the commissioners of
the constitutional commission had not been elected by the people.
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o The revision of the constitution: derived constituent power
 The modification of the constitution is made to adapt it to the
new circumstances which oblige the change of character.
 This power of modification is foreseen by the very constitution.
In this respect, it distinguishes itself from the original
constituent power by two principal points: (1) it is conditioned
at first because he has to respect the forms and the procedures
prescribed by constitution; (2) it serves only for modifying the
constitution not to replace it by the other one.
 To modify the constitution, the procedure differs as we are in
front of a flexible or rigid constitution.

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 The initiative of the revision of the constitution
 In a dictatorship, the initiative comes only from
the government. In the democracies, the initiative
is reserved for the parliament.
 As for Rwanda, the initiative of the revision of
the constitution returns jointly to the president of
the Republic, after deliberation of the cabinet, and
to every chamber of the parliament on vote with
the majority of two thirds of its members (art.
175).

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  THE ORGANIC LAWS
 The organic laws are materially constitutional; it is
the constitution that provides for those organic laws
to complete and precise the text.
 It does so in the very important domain for instance
organization, functioning and competence of the
prosecution are governed by an organic law.
 The organic laws are adopted or modified according
to the particular procedure, appreciably more
binding than the ordinary legislative procedure..
 o ORDINARY LAWS
 All the times when the constitutional matter is concerned
and when there is a law on that subject, that law constitutes
a source of the constitutional law.
o CONSTITUTIONAL CUSTOM
 This is the oldest source of constitutional law in that
originally law derived from the well-known and well-
accepted practices of the community.
 In general, the custom or customary law is said to be a
branch of law which involves practices and usages of
people of a given community and which have become
socially acceptable norms with a force of law.
 Such custom must be generally accepted by
all (or most) members of the society
concerned.
 Where there is no applicable law, the judge is
to rule on the basis of customary law in so far
as it is not offensive or inconsistent with laws
(See for example art. 176 of the Rwandan
Constitution).

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 To be legally binding, a constitutional custom must
have been generally observed over a long period; it
has been well-accepted in practices of the
community, and has not been
superseded by some other form of custom.
 In other words, a constitutional custom to have legal
validity, the following requirements must be
satisfied:
 Antiquity: as rule, a constitutional custom must
have existed for a long time and no living person
should easily know its beginning.
 Continuity and consistency: a constitutional
custom must be continuously and consistently
observed.
 Popular belief in the rightness/legality of a
custom: constitutional custom must
consciously be considered as right/obligation
by the members of the society (Opinio juris).

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 o THE JURISPRUDENCE
 Before applying a legal text, whatever it is, it is
necessary to determine the meaning.
 The interpretation of a constitution is made in
two manners: either it is interpreted by a law
voted by the parliament, or by the judge.
 The judge then plays a dominating role in the
determination of the sense of the constitution.
 In this way, the decisions which interpret the
constitution can serve as source of the law.
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CHAPTER III: THE STATE
 In constitutional law, state means the organized
authority of a particular political community
which manages the public affairs of that
community, both internally and externally.
 In other words, the state is an independent
political society occupying a defined territory,
the members of which are united together for
the purpose of resisting external force and the
preservation of internal order.
 Some concepts related to the state
 State and country
 Although the words state and country are used interchangeably
by many, some countries are not independent States.
 These include for example: Hong Kong, Bermuda, Puerto
Rico, and most notably the constituent parts of the United
Kingdom. (Northern Ireland, Wales, Scotland and England are
countries that constitute the UK, but they are not States.).
 A “State” can be a sovereign country or a sub-national unit of a
federal country, e.g. the State of Michigan (USA), or State of
Victoria (Australia).

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 Nations and Nation-States
 The word “nation” is often used as expressing a state.
Nations are culturally homogeneous groups of people, larger
than a single tribe or community, which share their historical,
linguistic, religious or ethnic links.
 When a nation of people have a State or country of their
own, it is called a nation-state. (Rwanda, France, Egypt and
Japan are excellent examples of nation-states).
 There are some States which have two nations, such as
Canada and Belgium, Cameroon etc.
 Only sovereign States are recognized internationally and
have the right to be in the United Nations
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 Elements of a State
In general, three separate elements have
been identified that are considered to be the
core essential elements of a state, the
elements are a community of people, a
specific territory and lastly specific
government authority.
 But see art. 1 of Montevideo Convention on the
Rights and Duties of States (enacted in 1933 and
entered into force 1934): “The state as a person of
international law should possess the following
qualifications: a permanent population; a defined
territory; a government; and capacity to enter into
relations with other States.” (the declaratory theory of
statehood).
 According to this theory, an entity's statehood is
independent of its recognition by other states, as long
as the sovereignty was not gained by military force.
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 A community of people
 A community of people is composed of citizens and non-
citizens who find themselves within a specific territory.
 In general, every Rwandan has right to a nationality and
dual nationality is permitted.
 The generally recognized ways in which citizenship or
nationality can be acquired are by birth in the territory of
a state (jus soli), descent from persons who are citizens
of the state (Jus sanguinis), and naturalization
(acquisition of nationality on the basis of other grounds).
 Nationality is the basic legal link between an individual and a
state (a Rwandan has Rwandan nationality, a Burundian the
Burundian nationality, etc.). Nationality in a sense refers to
citizenship, meaning enjoyment of political, civil and social
rights in one's country.
 But the term "nationality" may be wider than "citizenship",
because a person may, legally speaking, possess that link
(nationality), but practically being denied the rights and even
owing no loyalty to his country (citizenship).
 Most states distinguish between citizens and non-citizens
(aliens or foreigners) within its territory. The extent of the
rights and obligations of citizens differ from those of non-
citizens.
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 Citizens have certain political rights that non-citizens do not
have for example, voting rights, military service and job security.
If the constitution does not accord certain rights to citizens only
them, all people within the territory can rely on such rights.
 In many states, even citizens are often treated differently from
one another. The rights of prisoners for instance are more limited
than the rights of free citizens.
 Minors also have lesser rights in certain instances than adult
citizens.
 All cases of inequality or indifferent treatment must comply with
the constitution or else would be declared unconstitutional and
invalid.

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 See also Art. 9 of Montevideo Convention:
“The jurisdiction of states within the limits of
national territory applies to all the inhabitants.
Nationals and foreigners are under the same
protection of the law and the national authorities
and the foreigners may not claim rights other or
more extensive than those of the nationals.”

6/25/2021 75
 Territory of a state
 The second requirement for a state is that there
should be a specific territory where this
community lives.
 Every state has a specific demarcated territory,
which forms part of the physical environment in
which a state is allowed to exercised authority.
 There are various ways in which a territory can be
demarcated. They include geographical boundaries
such as land, islands and waters.
 The expansion or reduction of the territory of a state is
regulated by international law and can be affected in various
ways:
 Occupation: acquisition of territory, which does not form
part of any other state. Thus vacant land or newly discovered
land. Typically, this must be peaceful and public.
 Annexation: acquisition of territory by force of another state;
 Prescription: acquisition of specific territory through lengthy
and uninterrupted occupation of that area which formed part
of another state. If a second state occupies that territory
peacefully and publicly over a long period of time, it may be
said to have acquired the territory.
 Cession: When a state voluntarily transfers a territory to
another, typically via a treaty or sale;
 Adjudication: transfer of territory by one state to another
in terms of international adjudication as result of a dispute
or conflict settlement;
 Alleviation: the expansion of territory through natural
accretion. Accretion is when a state's territory increases by
natural processes, such as deposits from rivers or volcanic
eruptions.
 Art. 11 of the Montevideo Convention provides that states
are not to recognize territorial acquisitions that have been
obtained by force.
 The boundaries between states are mainly
determined by the principles of international
law and international treaties.
 Under international law, the territory of a state
also includes everything under the surfaces as
well as the air space above the areas.

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 Authority
 The exercise of authority is one of the most fundamental
features which characterize the state and it sets the state
apart from other societal institutions.
 The state as a juristic person acts through bodies
consisting out of a single person or a group of people.
 These government bodies are sometimes also referred to
as the different organs of a state.
 It is an important aspect of the constitutional law and
also administrative law, to be able to define which bodies
or institutions in a state are regarded as organs of a state.
 The state authority is distributed among three
organs in accordance with the principle of
separation of powers.
 The doctrine entails that government authority is
divided into legislative, executive and judicial
authority and government bodies that are divided
between legislative bodies, executive bodies and
judicial bodies then exercise these authorities.
 Legislative authority is the power to make, amend and
repeal rules of law, executive authority is the power to
execute and enforce rules of law and judicial authority
is the power to determine the law and the way in which
it should be applied.
 In theory, the bodies that enact rules of law shall not be
charged to execute those rules or to interpret such rules.
 However, there is no system in which an absolute
separation of authority can be found, or in which
government bodies can function in total isolation form
one other.
CHAPTER IV: DIFFERENT FORMS OF
GOVERNMENT
 The distribution of government authority is important to
determine the type of government of a specific country.
UNION/UNITARY FORM OF STATE
 A unitary state is a state or country that is governed
constitutionally as one single unit, with one
constitutionally created legislature.
 Governmental power may be transferred to lower
levels, to regionally or locally elected assemblies
(governors and mayors), but the central government has
the principal right to retain such devolution (“delegated
power”).
 Within a unitary system, one should then emphasise the
term “devolution”.
 Devolution/delegation can be defined as a process
whereby a centralised government delegates substantial
executive and legislative authority to provincial or
regional governments, but without loosing its highest/final
authority over such matters.
FEDERATION
 A federal form of state is distinguished from other forms
of state because there is real distribution of authority.
Authority is properly distributed between the federal
government and its participating states.
In a federation, the national government is usually known
as the federal government whereas the separate parts of
the federation are known as provinces (Canada) or states
(USA or Australia) or hander (Germany) or regions
(Spain). One can suffice with the term participating states,
as it suggests the true position of federation.
Federations often come into being when some independent
states agree to form a new state. The United States of
America is the best example. It is however possible for a
union to decide to become a federation. See Germany for
example.
 In a federal form of state where authority is
constitutionally distributed, the federal
government will have the highest authority over
certain aspects, while the participating states will
have the highest authority over other matters.
 Normally, the federal government may not
exercise authority over such matters that fall
under the jurisdiction of the participating states
and vice-versa.
 There are five different methods that exist for the
distribution of government authority between a federal
government and its participating states. These methods are:
 The authority of the federal government may be defined in
the federation constitution. All other powers or authority not
mentioned in the federal constitution are then vested in the
participating states. The USA is here a good example.
 The powers of the participating states can be defined in the
federal constitution vesting the remainder of powers in the
federal government. Canada is in this case a good example.
 Both the powers of the federal government and the
participating states can be determined in the federal
constitution. See the position of Switzerland.
 Modern federal constitutions provide for concurrent powers.
Both federal and state governments have jurisdiction over such
matters.
 It is important to investigate the constitutional provisions
dealing with such matters and also dealing with any disputes
over such concurrent matters. South Africa’s new constitutional
dispensation specifically provides for concurrent powers.
 Lastly, in some states, the legislative power may be vested in
the federal government while the executive power is vested in
participating states. See Germany for example.
CONFEDERATIONS
 A confederation must be distinguished from a
federation. They are not the same.
 A confederation is an association of sovereign states,
usually created by treaty but often later adopting a
common constitution.
 Confederations tend to be established for dealing
with critical issues, such as defence, foreign affairs,
foreign trade, and a common currency, with the
central government being required to provide support
for all members.
 The classical distinction between a federation
and a confederation is that in the latter, all
powers vest in the constituent states of the
confederation except those ceded by the
constituent states to the federal central
government.
 A confederation, in modern political terms, is
usually limited to a permanent union of
sovereign states for common action in relation to
other states.
 The European Union (EU) and the British
Commonwealth are examples of such
confederations.
 Thus a confederation provides a form of
operation between independent states according
to the principles of international law, and is not a
state in the true sense of the word.
CHAPTER V: POLITICAL SYSTEMS
 Different forms of government have different political
systems (e.g. Monarchy; Parliamentary; Presidential;
Semi-presidential etc.).
 THE MONARCH
 A monarch is a type of ruler or head of state, whose power
is often inherited, not earned.
 The word “monarch” derives from greek monos archein,
meaning “one ruler”, and referred to as an absolute ruler in
ancient Greece.
 With time, the word has been succeeded in this meaning
by others, like autocrat or dictator, and the word monarch
in modern usage.
 A country ruled by a monarch is called a
monarchy.
 The term monarchy is also used to refer to the
people and institutions that make up the royal
establishment, or to the realms in which the
monarchy functions.

Labor for the future 95

 In the hereditary system, the position of monarch
involves inheritance according to an order of
succession, usually within one royal family tracing its
origin back to a historical dynasty or bloodline.
 In some cases the royal family may claim to hold
authority by virtue of God’s choosing, or other
religious-based authority.
 The distinguishing characteristic of monarchies is
that the Head of State holds their office for life,
unlike in a republic, where a president is normally
elected for a certain amount of time.
 Different types of monarchs
 Monarchy can be either absolute or constitutional.
 An absolute monarchy (or absolutism as a doctrine): Is a
form of monarchy in which the monarch rules in their own
right or power. In absolute monarchy, the king or queen is
unlimited and has absolute power over every aspect of the
State (legislative, executive, judiciary).
 Characteristics of an absolute monarchy
 The king or dictator has complete centralized authority over
foreign and domestic policies.
 An "absolute" monarch does not share their power with any
other governing body.
• In other words, the monarch is not subject to any
checks and balances, or regulatory challenges by
any other entity regarding judicial or legislative
decision making authority.
• There is o form of a divine right which means
the monarch is claiming to have been chosen for
their position by a higher power such as a god.

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 A constitutional monarch is subjected to the constitution like
other citizens.
 Very often, constitutional monarchies restrict the powers of the
monarch to the point where he is little more than a powerless
figurehead, which is a common modern practice.
 Note however that some constitutional monarchs may retain
reserved powers and other constitutional roles and
responsibilities.
 In constitutional monarchies, sovereignty rests formally with
the king/crown but politically with the people (usually
represented by a parliament); the monarch now usually serves
largely ceremonial functions, except in times of crisis.

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 Some constitutional monarchs retain reserved
powers and other constitutionally defined
roles and responsibilities: For example, many
Constitutional monarchies can dissolve
parliament and call for new elections (usually
at the request of the prime minister).

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 Succession from one monarch to another
varies from country to country. In
constitutional monarchies the rule of
succession is generally embodied in a law
passed by a representative body, such as a
parliament.
 Traditionally, hereditary succession within
members of one family has been most
common.
 Some characteristics of a modern
constitutional monarchy are as follows:
 The head of state is the king/crown.
 The head of government is the prime minister.
 The title of king is hereditary and is held for
life once crowned.
 Both the head of state and head of
government are bound by the constitution of
their country.

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 Arguments against monarchies
 It is fundamental right of the people of any
nation to elect their head of state and for
every citizen to be entitled of public power,
and that a head of state is more accountable to
the people.
 All people are created equal and a monarch
born with power.

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Arguments in favor of monarchies
Supporters of monarchs make the following arguments:
 A hereditary monarch is likely to be a more competent head of
state than an elected president, because the former may have been
prepared from childhood, to serve as such.
 A monarchy may be less costly to maintain than a Republic
because it is without the state’s expenses of preparing presidential
elections for example.
A hereditary monarch can be less costly to maintain because the
royal family's private fortune may be enough for its own support,
compared to the public expenditures the accommodations,
pensions and other maintenance of a republic's presidential
incumbent and former presidents.
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 Presidents are obliged to act in accordance with the policies and
ideas of their political parties or supporters, while monarchs can
reign more independently.
 A monarch makes a better visible symbol of national identity and
unity than does a president.
 In a Republic the continual changes of head-of-state create
political uncertainty, which they contrast with the symbolic
continuity of having a monarch.
 It is a fundamental right of the people of any nation to elect their
head of state and for every citizen to be entitled of public power,
and that a head of state is more accountable to the people.
 All people are created equal and a monarch born with power.

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 Arguments against monarchies
 Republicans argue against monarchy:
 A monarchy symbolises privilege;
 A monarchy symbolises an exploitation;
 It is a fundamental right of the people of any
nation to elect their Head of State and for
every citizen to be eligible to hold that public
office, and that such a Head of State is more
accountable to the people;
 All people are created equal and a monarch
born into power, without earning it, is not
likely to be the best person to act as Head of
State, whereas someone elected is likely to be
chosen on merit for their superior qualities;
 PARLIAMENTARY SYSTEM
 Under the parliamentary systems, the head of state is
either a monarch or a president , but this position is
ceremonial.
 A parliamentary system is distinguished by the
executive branch of government being dependent on
the direct or indirect support of the legislative branch,
or parliament, often expressed through a vote of
confidence.
 Parliamentarism is praised, relative to presidentialism,
for its flexibility and responsiveness to the public.
Features of a parliamentary system
 The executive is typically a cabinet, and
headed by a prime minister who is considered
the head of government.
 The prime minister and the ministers of the
cabinet typically have their background in the
parliament (e.g. in UK). They may remain
members thereof while serving in the cabinet.

Labor for the future 109

 The prime minister and cabinet are appointed
by the parliament, but the prime minister also
has power to revoke the parliament from the
request of citizen.
 On the other hand, the leader of the leading
party or group of parties, in the parliament is
often appointed as the prime minister.
 In addition, the executive can often dissolve the
parliament and call extra-ordinary elections
 Under the parliamentary systems, the head of state
is primarily a ceremonial position, often a monarch
or president, retaining duties that aren’t politically
decisive, such as appointments of civil service.
 In many parliamentary systems, the head of state
may have reserved powers which are working in a
crisis.
 In most cases however, such powers are only
exercised upon the advice and approval of the head
of government.
 Countries with parliamentary systems may be
constitutional monarchies, where a monarch is the
head of State while the head of government is
almost always a member of the legislature (such
as the United Kingdom, Sweden and Japan).
 It may also be a parliamentary republic, where a
mostly ceremonial president is the head of State
while the head of government is regularly from
the legislature (such as Irland, Germany, India
and Italy, Israel).
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 The chief executive (prime minister) is questioned by the
legislature. In such procedure, the chief executive is
supposed to account.
 There exist the vote of no confidence (-motion of
censure):
 The cabinet, or a single member thereof, can be removed
by the parliament through a vote of no confidence.
 A prime minister will often declare a particular legislative
vote to be a matter of confidence. If a government loses a
parliamentary vote of confidence, then the incumbent
government must then either resign or call for elections to
be held.

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 Because the executive is directly related to the
legislature, some argue that the executive is actually
more accountable than many fixed term presidential
systems, as the executive, being linked to the
legislative, can face an early election in the face of
the aforementioned “vote of (no) confidence”.
 In addition, because the executive is usually part of
the legislature, they often face more direct
questioning by opposition politicians as members of
that legislature.
Advantages of a parliamentary system
 It could be argued that a parliamentary system is
more accountable than a presidential system, since
power is not divided. In parliamentary system, it is
easier for voters to tell who is responsible for
inaction than in a presidential system.
 Also, in a parliamentary system the chief-or prime
minister- is often questioned by the legislature. Such
a procedure would ensure that the chief executive is
held to account and would act as check on his power.
 Some believe that it is easier to pass the
legislation within a parliamentary system. This
because the executive branch is dependent upon
the direct or indirect support of the legislative
branch and is often comprised of members of
legislature.
 This is different from the presidential system
where the executive is often chosen
independently from the legislature.
Criticisms of parliamentary system
 The main criticism of many parliamentary
systems is that the head of government cannot
be directly voted: In a presidential system, the
president is directly chosen by the people, but
in a parliamentary system the prime minister
is elected by the party leadership.
 Another major criticism comes from the relationship
between the executive and legislative branches.
Because there is a lack of obvious separation of
power, some believe that a parliamentary system can
place too much power in the executive entity, leading
the feeling that the legislature or judiciary have little
scope to administer checks or balances on the
executive.
 Examples of States with parliamentary include
Ethiopia, Finland, Botswana, Israel, Austria, Greece,
etc.
 PRESIDENTIAL SYSTEM
 A presidential system, or a congressional
system, is a system of government of a
republic where the executive branch is elected
separately from the legislative.
 The defining characteristic of a presidential
government is how the executive is elected,
but nearly all presidential systems share the
following features:
• The president is both head of state and head of
government and leads an executive branch that is separate
from the legislative branch;
• The president has a fixed term of office. Elections are held
at schedule times, and cannot be triggered by a vote of
confidence or other such parliamentary procedures;
• Presidential governments make no difference between the
positions of Head of state and Head of government, both
of which are held by the president.
• The executive branch is unipersonal. Members of the
cabinet serve at the pleasure of the president and must
carry out the president’s policies.
 The legislature may have the right, in extreme
cases, to dismiss the executive, often through
impeachment (a process in which an official is
accused of unlawful activity, the outcome of which,
depending on the country, may include the removal
of that official from office as well as criminal or
civil punishment).
 The president may be given constitutional authority
to exercise the office of Commander in chief.

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 Cabinet ministers or executive departmental chiefs
are not members of the legislature.
 However, presidential systems often need legislative
approval of executive nominations to the cabinet,
judiciary, and various lower governmental posts.
 A president generally can direct or remove members
of the cabinet, military, or any officer or employee
of the executive branch, but cannot direct or dismiss
judges.
 The president can often pardon convicted criminals.
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 The president usually has special privileges in the
enactment of legislation, namely the possession of a
power of veto over legislation, in some cases subject
to the power of the legislature by weighed majority
to override the veto.
 However, it is extremely rare for the president to
have the power to directly propose laws, or cast a
vote on legislation.
 In some presidential systems, there is an office of
prime minister or premier who answers to the
president and not to the legislature.
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Examples of States with a presidential system:
- The United States is a typical one
- A few other States like Brazil, Argentina, the
Philippines and Mexico, Angola, Benin,
Cameroon, Senegal, Burundi, Togo, Uganda,
Tanzania, Kenya.

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Perceived advantages of presidential
systems
Supporters generally claim four basic advantages for
presidential systems:
 Direct mandate;
 Separation of powers;
 Speed and decisiveness;
 Stability
 Direct mandate
In a presidential system, the president is
generally elected directly by the people. To
some, this makes the president’s power more
legitimate than that of a leader appointed
indirectly.
 Separation of powers
 A presidential system establishes the presidency
and the legislature as two parallel structures. It is
then claimed that this arrangement allows each
structure to supervise the other, preventing
abuses (checks and balances).
 The fact that a presidential system separates the
executive from the legislature is sometimes held
up as an advantage, in that each branch may
scrutinise the actions of the other.
 Speed and decisiveness
 Some argue that a president with strong powers can usually enact
changes quickly, and that this is a good thing.
 Others argue that the separation of powers slows the system
down, and that this is a good thing.
 Presidential systems can respond more rapidly to emerging
situations than parliamentary ones.

 Stability
 A president, by virtue of a fixed term, may provide more stability
than a prime minister who can be dismissed at any time.

Labor for the future 128

Perceived disadvantages of presidential
systems
Critics generally claim four basic disadvantages for
presidential systems:
• Tendency towards authoritarianism;
• Exaggerated separation of powers;
• Impediments to leadership change.
• Lack of harmony
 Tendency towards authoritarianism
 In a presidential system, the legislature and the
president have equally valid mandates from the
public. There is often no way to reconcile
conflict between the branches of government.
 When there is a misunderstanding between the
president and the legislature, and that the
government is not working effectively, there is a
more possibility to employ extra-constitutional
manoeuvres to break the deadlock.
 Exaggerated separation of powers
 A presidential system establishes the presidency and
the legislature as two parallel structures.
 Critics argue that this creates undesirable gridlock, and
that it reduces accountability by allowing the president
and the legislature to shift blame to each other.
 Presidential system might create jam within the
government since the executive and the legislature are
completely separated. One example of this could be if
the legislature continues to block bills proposed by the
executive.
 Presidential systems are said by critics not to
offer voters the kind of accountability seen in
parliamentary systems.
 It is easy for either the president or parliament to
escape blame by blaming the other.

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 Impediments to leadership change
 It is claimed that the difficulty in removing an
unsuitable president from office before his or her
term has expired represents a significant
problem.
 Even if a president is proved to be inefficient,
even he becomes unpopular, even if his policy is
unacceptable to the majority of his countrymen,
he and his methods must be endured till the
moment comes for a new election.
 Absence of harmony
 In presidential system, the executive is isolated
from the legislature and others. So, different
organs of the government that is the executives,
the legislature will lack of harmony and
communication to each other because of being
completely independent of each other.

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 THE MIXED REGIMES
 The mixed regimes combine elements taken from the
parliamentary system and the elements borrowed in the
presidential regime, what sometimes arises, as for their
functioning, the problem of their coherence.
 It is always the same elements which are borrowed from
these two types of regimes:
 In the parliamentary system, the mixed regimes borrow
the existence of the government, collectively
responsible in front of the assembly elected in the direct
universal suffrage.
 From the presidential regime, they borrow the
institution of an elected president in the
universal and direct suffrage and disposing
considerable powers. Among the mixed
regimes existing today, let us quote Austria,
Finland, Ireland.
  SEMI-PRESIDENTIAL SYSTEM
 The semi-presidential system is a system of
government that features both a prime minister and a
president who are active participants in the day to day
functioning of government.
 It differs from the parliamentary system in that it has a
popularly elected president who is not a ceremonial
figurehead and it differs from the president system in
that it has an executive prime minister who has some
responsibility to the legislature.
 How the powers between the president and prime minister are
divided can vary between countries. For example, the president
can be responsible for foreign policy and the prime minister for
domestic policy.
 Semi-presidential systems are sometimes typified by periods of
cohabitation, in which the prime minister and president are elected
separately, and often from rival parties.
 This can create an effective system of checks and balances or a
period of bitter and tension, depending on the attitudes of the two
leaders, the ideologies of their parties, or the demands of their
constituencies.
 By virtue of its being called semi-presidential, the regime type in
question is clearly identified as a hybrid that is neither presidential
nor parliamentary.
 Semi-presidentialism is often praised as the
arrangement which enables to correct the
shortcomings of “pure” models presidential or
parliamentary with regard to democratic stability.
 The fundamental difference is that executive power
is divided “ in half” under semi-presidential
between the elected in public president and the
prime minister selected by the legislature.
 This sharing of executive power is one of the key
characteristics of the semi-presidential system.
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From all, it follows that semi-presidentialism may
be defined by three features:
• A president who is popularly elected;
• The president has considerable constitutional
authority;
• There exists also a prime minister and cabinet,
subject to the confidence of the assembly
majority.
 Weaknesses of the system
The following are some weaknesses of the semi presidentialism
identified by scholars:
• The semi-presidential system (like the presidential and
parliamentary) requires well-developed (“fit”) political
parties;
• Assumes that internal party divisions will not prevent the
president and prime minister from working effectively
together; and
• Does not resolve problems of polarized pluralism or a
fractured political party system (and inability to reach
decisions or form stable coalitions within the legislature).
Examples of Semi-presidential systems
Ukraine, Taiwan, Sao tome and Principe,
Republic of the Congo, Portugal, Niger,
Namibia, Mozambique, Madagascar etc.

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 CHAPTER VI: RWANDAN
CONSTITUTIONAL SYSTEM
 HISTORICAL BACKGROUND
 Like many former colonies, Rwanda - before 1994
- had never had a constitution that can truly be
described as autochthonous:
 Firstly, Existing constitutions were based on
foreign models which never took into account the
socio-economic particularities of Rwandans.
 Secondly, Rwandans never participated in the
making of these constitutions as they were simply
imposed on them by the foreign occupiers.
 The 1961 Constitution:
 This constitution was established in the context of the
decolonization processes and transition to independence.
 The Constitution of 1962:
 In November 1962, a new constitution was adopted. Its
main objective was to consolidate the republic and
establish a multiparty regime.
 In 1973, after a military coup, the then president
suspended the constitution and he effectively ruled by
decrees until 1978 when a new charter was drawn up
with a single political party.
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 The 1991 Constitution:
 In 1991, a constitutional revision reintroduced multi party
politics. It upheld the principle of separation of powers and
the rule of law.
 This constitution however was never effectively applied
because a civil war that had been going on since 1990
provoked a parallel process that supplemented the internal
reforms with a negotiated settlement of the war.
 This was the Arusha Peace Accords of August 1993, which
together with the 1991 constitution and additional protocols
on the rule of law, constituted the fundamental law of
Rwanda during the transitional period from 1994 to 2003.
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 The 2003 Constitutional reform process:
 In 2000, a constitutional Commission was
established with a three year mandate to drive
the process which had to be participatory and
grounded in the aspirations of the Rwandan
People.
 The process is credited for producing the first
true constitution written by Rwandans and based
on their common aspirations and interests.

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 SEPARATION OF POWERS UNDER RWANDAN
CONSTITUTION
 The president and national executive (art. 97-125)
 It was stated at the beginning that government authority is
divided into legislative authority, executive and judicial
authority. Different government bodies exercise each of these
types of authority.
 The executive power is vested in the president and cabinet.
 In general, executive authority can be defined as the power to
execute rules of law.
 National executive authority is therefore the power to execute
the rules of law at national level through the whole territory of
the state.
 Most modern democracies all over the world
compel their executive bodies to be bound
and subject to the law, but also in some
instances to create new rules of law through
subordinate legislation.
 It is the responsibility of executive organs of
state to plan, coordinate and manage all state
activities within a country.

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 According to the Rwandan constitution, the
executive authority of the Republic of Rwanda, (the
national executive authority), is vested in the
president and the cabinet. Therefore, the main
source of executive authority in Rwanda is the
constitution.
 Various government bodies exercise executive
authority. These bodies at the national level of
government include the president, the ministers
(cabinet), and also other public servants or officials.
 The term public service (servants) refers to all
officials within the public administration that
execute the policies of government.
 Legal rules are mostly executed within a
specific government department or
administration, which is headed by a political
functionary, normally a minister.
 The President of the Republic (Art. 98 …)
 The President of the Republic is the highest executive
body/organ on national and therefore also within the
state.
 “The President is the Head of state. He/she is the
guardian of the constitution and guarantees national unity.
 He/she guarantees the continuity of the state, the
independence and territorial integrity of the country and
respect of international treaties and agreements.
 The President of the Republic, once every year, delivers
the state of the Nation address”.
Labor for the future 152
 The President of the Republic promulgates a law within
thirty (30) days of its receipt.
 However, before promulgating the law, the President of the
Republic may request the Parliament for a second reading.
 In this case, if the Parliament adopts the law by a two-
thirds (2/3) majority vote for ordinary laws, or by a three-
quarters (3/4) majority vote for organic laws, the President
of the Republic promulgates the law within the same
period. (art. 106).
 The power to call a Referendum is vested in the President
of the Republic. (art. 107)

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 The election of the President of the Republic is by universal
suffrage through a direct and secret ballot with a plurality votes
cast.
 The requirements for candidacy for presidency office are the
following:
1° be of Rwandan nationality by origin;
2° not hold any other nationality;
3° be irreproachable in his or her conduct and social relations;
4° not have been definitively sentenced to an imprisonment of six
(6) months or more;
5° not have been deprived of civil and political rights by a Court
decision;
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6° be at least thirty five (35) years old at the time of his or her
candidacy;
7° reside in Rwanda at the time of submitting his or her
candidacy.
 Elections for the President of the Republic are
held at least thirty (30) days and not more than
sixty (60) days before the end of the term of the
incumbent President
 The president has limited terms of office (elected for a five
(5) years term). He or she may be re-elected once. (Art.
101). See also the transitional provisions of art. 172.
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