1.4.10 Debating the draft constitution

It is becoming common to allow time for public scrutiny and comments on the draft constitution before it is approved by the assembly. (“Assembly” here is used to refer to the body that makes the decision on adoption, even if the adoption is subject to a referendum.) The advantage of this practice is that the public can react to a concrete and comprehensive set of proposals, and assess with some confidence its significance for them and the state. If there has been opportunity for prior public consultation, they can now judge to what extent their views have been taken seriously. The period of public consultation can also be seen as a chance for “peer review,” an examination of the document’s strengths and weaknesses, and the opportunity to correct policy and drafting errors. (Some countries have invited experts to review the draft: Timor-Leste [2002], Afghanistan [2004], Nepal [ongoing process], and Zimbabwe [2000].) If political parties or the general public are divided on some issues, here is another chance to build consensus, although there is the danger that during this period fresh differences may emerge (as they did in Kenya [2010]).

It is important to ensure that the public is correctly informed about the contents of the draft and allowed to make an assessment of it. Here civil society and academics can play a vital part. It is surprising how ill-informed debates on draft constitutions and proposals can be; politicians, but not only politicians, have a tendency to make pronouncements without bothering to read the draft. (See the discussion of civic education in part 2.2.2.)