ABSTRACT
Among other things, constitutions attempt to institutionalise a conception of state and governance. Constitutions and the institutions they establish step in when men falter. After all, constitutions and the laws they embody are expected to last longer than the lifetimes of men. This is why the drafting of a new constitution is often considered a prerequisite rite of passage for newly-independent states. Unfortunately, many new states fail to maintain the constitutional orders they establish at their founding. More often than not, constitutions are either tossed out of the window with each regime change or legislated into obscurity. This is because governments of new states that are struggling to establish order and legitimacy feel unduly constrained by constitutional checks and balances which do not allow them sufficient elbow room to govern with authority. This problem was succinctly highlighted by Huntington as follows:
In framing a government which is to be administered by men over men’, Madison warned in The Federalist, No 51, ‘the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself’. In many modernizing countries governments are still unable to perform the first function, much less the second. The primary problem is not liberty but the creation of a legitimate public order. Men may, of course, have order without liberty, but they cannot have liberty without order. Authority has to exist before it can be limited, and it is authority that is in scarce supply in these modernizing countries where government is at the mercy of alienated intellectuals, rambunctious colonels, and rioting students.1
