Assignment Essay

The constitution of a state need not just be legal in its creation but also legitimate during its existence. Discuss this statement with reference to the Zambian scenario.

INTRODUCTION
In discussing this statement, I will first discus what is meant by the term constitution, legal constitution, and look at the term legitimate with specific reference made to the Zambian scenario.

CONSTITUTION
A constitution is the law, institutions and customs which combine to create a system of government to which the community regulated by those laws accedes. The written document embodying these laws. Typically constitutional laws are to some degree entrenched, i.e. a special procedure must be used to change them. All rules which directly or indirectly affect the distribution or exercise of sovereign power (Dicey). So much of the law as relates to the designation and form of the legislature, the rights and functions of the several parts of the legislative body, the construction, office and jurisdiction of the courts of justice (Paley). The rules which regulate the structure of the principal organs of government and their relationship to each other, and determine their principal functions. The rules governing the relationship between the individual and the state. The Zambia constitution is written. These rules are found in statute law, case law, the law and custom of parliament and constitutional conventions and have, in general, no higher status than any other laws. As a result certain constitutions are said to be flexible. A constitution is a document that establishes the three institutions of government. A document that regulates the relationship of the three organs of government and the relationship of private citizens and between the government and the governed. All the above definitions of the term constitution have an element of truth as to what a constitution is. However the Oxford Dictionary of Law has defined the constitution as to the rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state. The constitution of Zambia is legal; this means that it is a constitution where the judiciary form the greatest check upon the use of executive power. A legal constitution can be contrasted with a political constitution where political accountability is the greatest method of controlling government. In a legal constitution methods of official review and the striking down of unconstitutional legislation may be used in order to control government power. A move from a political to a legal constitution has been noted in the United Kingdom after the passing of the Human Rights Act. As guided by the question, we are looking at the legal aspect and the legitimacy of the Zambian constitution. Therefore, this discussion now borders on what a Zambian constitution is. A constitution can be viewed from two angles namely the abstract and concrete. Zambia has a concrete constitution, which is a document in which the most important law of the country are authoritatively ordained. In this sense, it means that the constitution is the supreme law of the land. In Zambia, Article 1 (3) of Cap.1 provides to the effect that, “ this constitution is the supreme law of the land and if any other laws is inconsistent with this constitution, that other law shall, to the extent of the consistency, be void. It is suffice to say that the constitution is the paramount law of the land to which all laws enacted by parliament must conform or be deemed unconstitutional.

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[ 1 ]. Osborn’s Concise Law Dictionary, Eleventh Edition, ( Sweet & Maxwell), P109
[ 2 ]. Osborn’s Concise Law Dictionary, Eleventh Edition, ( Sweet & Maxwell), P109
[ 3 ]. Constitutional ,Governance and Democracy, (M. Besa)
[ 4 ]. Constitutional law notes (Mr Mwewa) lecture at Cavendish university of Zambia.