IMATT, USL

LLB (HONORS) YEAR 2

CONSTITUTIONAL AND ADMINISTRATIVE LAW

In the context of Western liberal democracy, Constitutional and Administrative Law is

also known as Public Law. An example of such a Western liberal democracy is
England with the English Legal system.

These are the key components: Constitutional Law, Human Rights Law,
Administrative Law, Information, Media, and Telecommunication Law in addition to
Criminal Law.

In Sierra Leone, there are many laws or statutes relating to Information, Media, and
Telecommunication in relation to Human Rights. All of these will be put into proper
constitutional perspective in relation to the various components in view of case laws
that are in line with the common law.

Definition and Classification or Taxonomies of Constitutions in Liberal Democracies

1. Definitions of Constitutional Law;

2. Rationale for the Constitution in the Governance of the State;

3. Classification of Constitutions.

The bridge between politics and law is Constitutional Law. Constitutional Law is
about the State, governance and law. It is also about the fundamental rights,
freedoms and liberties of citizens in Liberal Democracies. In the context of
constitutionalism, the powers of the state are balanced off with the rights, freedoms
and liberties of citizens. The Superior Court of Judicature is the institution that
ensures this balance. For example, should the state and its institutions or operatives
infringe on the fundamental rights of citizens, citizens can seek redress in the
appropriate court of competent jurisdiction in the state. Again, should citizens be
dissatisfied with decisions of their national courts regarding the enforcement of their
fundamental rights and freedoms, they can proceed to the ECOWAS Court for
redress. See the case of the Republic of Sierra Leone v the former Vice President of
Sierra Leone, Chief Alhaji Samuel Sam-Sumana.

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From what has been said so far, a number of concepts stand out. These concepts
include:

1. State;

2. Governance;

3. Laws;

4. The Fundamental Rights, Freedoms and Liberties of citizens;

5. Constitutionalism.

These concepts are fundamental to Constitutional Law. They are the architecture
upon which this module is constructed in English Law.

1. The Sate: The concept of statehood in political philosophy and constitutionalism is

built on cooperation. In general, human nature is underpinned by two extremes.
These are conflict and cooperation. Humanity has always sought for cooperation
over conflict. Consequently, different political communities have sought for relative
security over instability. Thus, in the name of cooperation, the state became the most
supreme political entity created to harmonize the various parts of society.

Political and Philosophical Perspectives of the State.

1. The Harmonization or Cohesion Theory - The notion that the state is the
most supreme political entity that harmonizes the various parts of society.
Note: that the state is collectively created, willingly formed, with shared
interest in the context of norms, customs, mores, values, etc. Such a
perspective can be better understood from the following classics:
I. Plato’s Republic;
II. Aristotle’s Nicomachean Ethics;
III. Aristotle’s Politics;
IV. St. Augustine of Hippo’s The City of God;
V. St. Thomas Aquinas’ Summa Theologica.

The essence of the state, according to this perspective, is to protect the

collective interest or common good of a political community. Thus, every
political community is made of persons, institutions and structures that
have shared interest and the shared interest of a political community are

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 rationalized in a number of ideals: Justice, Freedom, Peace, Liberty, Rights,
Truth, etc.

2. The Force Theory – From this perspective, the state came into existence
pursuant to the use of force. This perspective of statehood is based on the
idea that the state came into existence pursuant to wars and conquest of
different territories or political communities brought under a single political
community. It further says the state has been able to maintain sovereignty
and territorial integrity against internal and external aggression by force. In
doing this, the state relies on what the French philosopher Louis Althusser
describes as the repressive state apparatuses: The Armed Forces, the
Police, the Justice System, the Correctional Service, the Law, etc. This theory
also notes that the state is the only institution that has monopoly over the use
of legitimate force in a political community. See Max Webber on this: the
Monopoly of Legitimate Force. It has to be noted that wars and conquests
have always been around, but they were outlawed as means of acquiring
territories or resolving disputes between states through the Kellogg-Briand
pact, a key element of international law.
Note: The Westphalia Treaty, also known as the Peace of Westphalia, was a
series of treatises signed in 1648 that ended the thirty years’ war in Europe,
the conflict of the two swords. This treaty marked the start of international
relations even as the Roman Catholic decided to focus attention on spirituality
over wars and conquests.
Note: the 1990 invasion of Kuwait by Iraq under Sadam Husein.
3. The Social Contractarian Perspective: This theory is based on the idea that
the state is in existence as a result of a hypothetical contract between the
governors and governed. There are different variants of this theory: Thomas
Hobbes, John Locke, Jean Jacques Rousseau, John Rawls, and Robert
Nozick.

Thomas Hobbes: He examines man’s life in the state of nature. He says

human beings are in constant competition for honour, power, wealth, and
status. As a result of these, they will stop at nothing to satisfy their
unmitigated selfishness and rapacity. In the state of nature, according to
Thomas Hobbes, no one is safe even the strongest man can be defeated by

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the weakest. Also, in that state of nature, there is no need to keep your
promise because you do not have the assurance that the other person can
keep his promise. Man’s life in the state of nature is solitary, nasty, brutish,
short, and poor. He went further to say that for society to be stable and
peaceful, citizens must surrender their rights, freedoms and liberties to an all-
powerful leader known as Leviathan. The essence of the Leviathan is to
check the excesses of men in a political community in the state of nature. The
Leviathan will ensure that every other person keeps their promises. The
Leviathan is the symbol of the protection of the collective interest of all and
sundry. The Leviathan does not necessarily have to be a single figure. The
Leviathan can as well be an assemblage of persons. The Leviathan forestalls
the unmitigated selfishness and rapacity of men in the state of nature. This
idea of the Leviathan is the original foundation or architecture of the Social
Contract Theory. Thus, a hypothetical contract is seen between the
Leviathan who is the Governor of Governors and the multitude of persons in
the political community, the Governed. Hobbes’ idea of the Leviathan is
seductive but delusional, that is, attractive but misleading. It is based on
the idea that the powers of the Leviathan are unrestricted and unchecked by
any other functional institution or structure in the political community. This
depicts the idea of absolute power (political realism) and the political theory –
“power corrupts, but absolute power corrupts, absolutely.” The question that
arises is that how can you have a political community that is governed by a
Leviathan whose powers are unchecked by any institution or structure? Thus,
Hobbes’ idea has been the basis of oligarchies, dictatorship, authoritarianism
and autocracies. A democratic society will find it hard to embrace the idea of
Hobbes hook, line and sinker. This is because democracy is about
consultation and consent. It is about the recognition, protection and
enforcement of fundamental rights and freedoms. Should citizens surrender
their rights to the Leviathan whose powers are unrestricted? There can never
be peace, stability and development. For the Leviathan will stop at nothing to
trample upon their rights and freedoms.

John Locke: He was also another notable social contractarian. His version of
the social contractarian theory is different from that of Hobbes. In general,

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 they both share the view that the creation of the state is rooted in a social
contract between the governors and the governed. However, Locke did not
accept the view that citizens must surrender their rights to an all-powerful
Leviathan for protection. Rather, he believed that individuals are born with
certain rights, freedoms and liberties that are inalienable and indivisible and
fundamental to their dignity and sanctity as human beings. He argued that
these fundamental rights, freedoms and liberties are so essential that they
cannot be taken away from them except by Law, that is, the Law must clearly
establish the circumstances in which the fundamental rights, freedoms and
liberties of individuals are restricted. He further argued that surrendering
citizens’ fundamental rights, freedom and liberties to an all-powerful Leviathan
would undermine their potential and happiness in a political community.
Therefore, the protection of their rights is embedded in the Law and nothing
but the Law. Locke’s social contract thesis attempts to strike the balance
between the powers of the state and the protection of the rights, freedoms
and liberties of citizens. His work the Two Treatises of Government is a
political and philosophical classic that has shaped the evolution of knowledge
in constitutionalism in the context of human rights. The essence of the social
contract theory, according to Locke, is to protect the good of all (the general
good) and simultaneously restricts the overwhelming power of the state while
enhancing citizens’ fundamental rights, freedoms and liberties.

Jean Jacques Rousseau.

John Rawls

Robert Nozick

4. The Conflict Theory of the State - This is also known as the conflictual
perspective of the state. Again, it is dubbed the Marxian conception of the
state. The founders of this school of thought were, Karl Marx and F. Engels.
Their classical political and philosophical text: "Das Kapital", also known as
The Communist Manifesto is the intellectual foundation of this theory. Marx
studied German Philosophy (particularly the Hegelian dialectics: Thesis,
Antithesis, and Synthesis). It should be noted that every development is
rooted in ideas in the context of idealism. There is always a dominant belief in

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society. He also studied French Utopian Socialism which is based on the idea
of equality and a communal society that protects the interest of all. He also
studied the British Political Economy, and from these studies, he developed
his own radical Marxian theory of the state. He believed that the history of
all hitherto existing societies has always been the history of class struggle and
this struggle leads to an unstoppable revolution that will bring about the
triumph of one class over the other. For Marx, the capitalist state that
emerged with the industrial revolution was extremely exploitative to the
workers (the Proletariat). The workers were exploited to a point that they were
given pittances for their labour. This exploitation was done by the resource-
owners (the Bourgeoisie). He was of the view that it will come to a time when
the workers will realise that they have been used, refused and abused when
they become misused. To avert this forever, they must stage a violent
revolution to liquidate the resource-owners, that is, to kill them all and usurp
their power, authority and wealth. Marx observed that a dangerous spectre
was haunting Europe.
This violent revolution is said to be the first stage of the Marxian Conception
of the state. The next stage is atheism as the workers must destroy religion
and belief in God. For religion itself is an opium of the oppressed. According
to Marx, there is no just God that rules the universe. The idea of a God is a
creation of the resource-owners to keep the workers poor.
In the next stage, they must believe in economic determinism that the
economy is the epicentre of everything. So, every other thing is a
superstructure that depends on the economy for survival. So, the Law and the
state’s ideological and repressive apparatuses are contingent on the
economy for survival. For the capitalist (the resource-owners), the law is an
ideal that is used to protect their wealth and resources. For the ordinary men,
the workers, the law is an ordeal that is used to exploit and suppress their
potential to get to the top.
The next stage is Socialism – This stage presupposes the allocation of
scarce economic resources by a central bureaucratic authority established by
the workers. At this stage, resources are accordingly allocated from each
according to their ability to each according to their work. Equality is the basis
of peaceful co-existence and the state (society) can no longer be threatened

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 by violence as the stability, existence, progression and development are
guaranteed.
The final stage is Communism - This stage presupposes the advent of the
New Communist or Socialist Man who lives in a world of unlimited abundance.
At this stage, there is no need for the state; for it withers away. Neither is
there any need for the state’s ideological (media and communication, civic
education scheme, etc.) nor repressive (the Police, the Armed Forces, Office
of National Security, etc.) state apparatuses. At this stage, society or the
political community is governed by communist ideals not Laws.

The Divine Theory - this theory is based on the idea that the creation of the state is
divine and that the state must be governs by king, queens and emperor, who are
divinely inspire to do so. the divinely inspires governors are the only chosen persons
with divine wisdom and power to govern. this theory was the basis of the then British
monarchical system of governance, that system created absolute power for the
governors, their powers were neither restricted nor unchecked by any functional
institutions or structures in the political community, so the king, queen and emperor
had absolute power.
Absolutism is a manifestation of tyranny and political authoritarianism, in political
theory it is said that power corrupt but absolute power corrupt absolutely, since the
powers of the governors (MONARCH) were unchecked, they could stop at nothing to
satisfy their unmitigated selfishness and rapacity. In that system there was no way
state powers were restricted by legal and constitutional institutions and organization,
including judiciary, media, civil society etc. this system of governance was factually
antithetical to the ideals of constitutionalism and liberal democracies, citizen rights
freedom liberties could be infringed upon by the state with impunity and it was hard
for them to seek redress in the law with the enactment of the famous Magna Carta
1215, which is said to be the oldest human rights instrument on record, the wind of
human rights protection began to blow in Great Britain and across Europe, the need
was thus felt for a constitutional monarchical system to be subsequently incorporated
into the governance structures of England. The petition of right act, habeas corpus
act etc. eventually laid the foundation for constitutional monarchism – this system of
governance subsequently became the political system upon which the ideals of
liberal democracies were constructed – we will examine these ideals in the statism V
Liberalism debate

The Legal Conception of Statehood: this conception can be traced as far back as
to the signing of the Westphalia treaty of 1648, this treaty marks the formal beginning
of international relations and international law – this treaty establish the fundamental
characteristics features of statehood in international law. these features are:

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 Geographical Territoriality: this is the first feature of international relations
and international law, every political community is bound to have its territorial
boundaries encompassing its air space, territorial waters, minerals and
resources and its definite territories as define by law – See the first schedule
of the constitution of Sierra Leone act. No.6

 Government: this presupposes the institution that has political legitimacy to

govern institution and structures of the political community, thus, ideological
variations have culminated in the establishment of different forms of
Government, rationalized in constitutionalism, in general governance
structures are collapsed into two categories: 1. Liberal Democratic
Governance structures and 2. political authoritarian rationalized in tyranny, it
is within this second category that autocracy, totalitarianism, despotism,
militarism – so in international law irrespective of the political ideologies of
state governance system and structures, they are considers legitimate
governance system

 Population: a state is bound to have its populations (creatures in being) with

a common identity and heritage and it is the state that issues to them and
their national passport is indicative of their common identity – the population
of state are underpinned multi culturalism and diversity, the responsibility of
the state is to harmonize the various cultures and cultural differences in the
political community this is the essence of philosophy of unity in diversity –
Section 5(1) of the 1991 constitutions is built on the ideals of freedom, justice
and democracy, these ideals are essential for the stability, continuity
development and progression of Sierra Leone as a state, they are the basis of
peaceful coexistence and the political objective of sierra Leone as a state
found in Section 6 of the SL Constitution resonate with the ideal of freedom
and justice

 sovereignty