American politician Michelle Bachmann recently caused a bit of a stir when she challenged a Government decision to limit the quantity of potatoes in schools by enquiring where in the constitution it allows the government do so.
And before we start, let me assure you I didn’t wake up this morning imagining that I would write a sentence with ‘potatoes’ and ‘constitution’ in such close proximity. Life has a way of occasionally forcing you to ponder legal principles in light of edible foodstuffs.
Anyway, Bachmann was quite rightly criticised for this argument. It is obviously the wrong way to look at things and not only because potatoes in school should not be a constitutional issue in the first place.
The more obvious reason is that the constitution cannot provide for every eventuality and you wouldn’t need to scrutinize it too hard to figure out that this would be a constitutionally-acceptable thing for a government to do.
Applying Bachmann’s test would render day to day life completely impractical (although, let’s face it, it could be a lot of fun if taken to its full absurd conclusion).
But it got me thinking about how different countries see their constitutions. In the United States, this form of constitutional fetishism has become popular over the last few years, mainly on the right of the political spectrum.
In the House of Representatives, members proposing new laws must pinpoint what part of the constitution would give the law legitimacy.
In addition, we were treated to the sight of lawmakers reading the constitution aloud in its entirety (watching it with a straight face was something your humble correspondent was ill-equipped to accomplish).
For a country as steeped in Christianity as the United States, it eerily seems like worshipping a false idol. The constitution is by all intents and purposes, the bible itself.
In Rwanda, we have a somewhat more tenuous relationship with it- we know it’s there, but we don’t really use it much. It is interesting, for example, that we haven’t had any major cases which draw on interpretations of the constitution.
Our constitution has the same legal significance as the United States constitution- the overriding law of the land, the source of a bill of rights etc- but it doesn’t have the same reverence here and it does not constantly intrude into everyday life as it does in the United States where people tend to hold it tighter than they would hold their true love.
Considering the state of the nation when the constitution was drafted, perhaps this stalker-like relationship is not surprising.
It helps that they have had an extensive case law over the years to clarify the precise scope and meanings of this hallowed document.
In our case (and I intend to return to this theme on another day), our lack of case law means the constitution isn’t really a living, breathing thing (metaphorically) but a flat, lifeless set of ideas. All the wonderful prose and ideas on paper can only go so far- it is problematic if we are not having an active debate about them, and defining what individual provisions really mean and where they apply.
The courts are usually the most effective way to have this debate, but this is pretty unexplored territory. Of course, this only takes us back to the original problem of why we are not having constitutional-related cases in the first place.
Perhaps the fact that it came nearly a decade after 1994 with the country having already achieved a great level of stability and success gives us a certain level of alienation. In any case, it will be interesting to see how this relationship will change in the years to come.