1.4.6 Scope of reform: Interim, minimal, or complete?

One of the initial choices countries face is whether to engage in incremental constitutional change or to replace an existing constitution with a wholly new document that reflects a new order. In reality, however, countries that initially decide to embark on one approach often eventually change, and instead adopt the other—for example, when the incremental change required is found to be so extensive that a whole new constitution is required, or when major changes prove impossible to achieve but gradual change proves possible. (See part 2.1.2.) In the incremental approach, the drafters must confront outstanding problems, remove the most offensive passages of the existing constitution, and address glaring omissions, and at the same time generate momentum for continuing revision. Chile has pursued this strategy to some degree, as has Indonesia; Israel did so as it set about establishing a new state. An advantage of this approach is that it can lessen the drama surrounding the constitution. In some settings, creating a constitution de novo and using the constitution to solve a range of difficult problems can raise political stakes and may increase societal or political divisions. However, incremental approaches are most workable when there is significant trust among political representatives and between representatives and their constituents. The contexts in which the United Nations and others work generally do not display this characteristic. There is a belief that the incremental option may not be available outside stable, liberal democracies—although the case of Indonesia suggests otherwise.

An interim constitution has some resemblance to incremental change, but the former is clearly accepted as transitional, leading to full reform, while there is no such promise in the incremental approach. On the other hand, when supporters of reform settle for incremental change, they anticipate that the logic of the change will most likely lead to further reform (without prompting resistance from the existing regime).

1.4.7 Actors and public participation

A good process must balance the interests of different groups and communities. Sometimes the interests that dominate are those of the powerful, the urban population, or warring factions in conflict or postconflict situations. Frequently it is considered expedient to restrict public participation in order to ensure that interests critical to a settlement are privileged. By contrast, there are cases in which deliberate attempts are made to bring in groups that have been marginalized by political and economic forces. Indeed, the trend is toward the wide participation of the public, as a manifestation of its “sovereignty,” to secure legitimacy, and—most important— to find out the expectations and wishes of the ordinary people. Today’s process is likely to involve political parties, religious groups, ethnic communities, professionals, business organizations, trade unions, women, the disabled, diasporas, regions, and parts of the international community. There are many forms of public participation, such as representation in the constituent assembly, acquiring a knowledge of civics, making recommendations to the assembly, lobbying, commenting on the draft constitution, and possibly voting in a referendum, in some cases at various points in the process.

Public participation may run throughout the process, though the forms may change, as may the intensity of popular engagement. The sequence of the forms of public participation is an important element in designing the process: determining the appropriate time for public debates and input from the general public, specialist groups, and contributions from experts, particularly constitutional experts; the time for negotiations; the time for drafting; and the time for enactment. At each of these stages different forms of public participation may be relevant.

It is important to disaggregate the forms of public participation, since such participation is now understood to be relevant to most aspects of constitution-making. Many critical elements of public participation are discussed in part 2.2.2; not all forms of participation may have an impact on what gets into the constitution. Indeed, the most public and intense forms of participation, such as public hearings throughout the country, may have a smaller impact on the content of the constitution than a quiet conversation between the government leader and a principal Western ambassador. So in designing the process, we should pay special attention to how much the form of public participation is likely to influence the outcome—and here the rules for making decisions on the content and for the enactment of the constitution are critical. (See part 2.1.4.)

Usually the most important actors are political parties, except in a conflict or postconflict situation, in which the armed factions may have greater, if temporary, dominance. Political parties are likely to promote greater public participation than militias—but how much greater will depend on the democratic and participatory nature of the parties themselves. In both South Africa and Nepal, political parties dominated the negotiations for reform and the process for making the constitution. But the former process was fairly participatory, and the latter much less so, for in Nepal each of the parties was dominated by one or two top leaders.

The increase in the number of groups participating in the processes has complicated them. The presence of many groups, with their different and often conflicting agendas, puts a premium on the negotiating skills of those entrusted with the management of the constitution-making process. There is real risk that instead of the process leading to a national consensus, it will sharpen differences and render impossible the adoption of a new constitution.

Public participation can set in motion competition. This is most evident in the competition between the people and the politicians, but also in that between men and women, traditionalists and “modernizers,” and the like. To some extent competition is regulated by the rules for decision-making, especially with regard to which group is given the last say. (For example, if the final decision is to be made by the legislature, the earnest engagement of civil society and the development of a draft by a constitutional commission can come to naught if the legislature, driven by totally different considerations, vetoes it or amends it drastically.)

Therefore, while public participation is desirable, it comes with several dangers. It can degenerate into deception, promising people that their voices will be heard and then either twisting what they have said or just ignoring them. Neither inspires confidence in politicians, who are generally the ones responsible for such tricks. A second danger is that the role of experts may be minimized, or even denigrated, by the populism of participation. This may lead to an incoherent document. There is some evidence that public participation can lead to conservative, even intolerant, views when it comes to “moral” questions such as capital punishment, homosexuality, same-sex marriage, and abortion. Another danger is that social and ethnic divisions may become sharper as different groups fight for their interests. This leads either to conflict or to unwise or even unworkable compromises; both cases deny the objectives of “deliberative democracy” and of rational decision-making.

Public participation may not be restricted to domestic actors. In many conflict or postconflict situations, the international community (in different forms) may be an important actor in both planning and executing the process. Some parts of this public participation may be mandated by treaty or law, but a great deal of it may be informal or opaque, and sometimes it may entail plain intimidation. Equally, foreign involvement can be useful, and sometimes even critical to success. International involvement raises the questions of legitimacy and accountability: what is the moral justification for an international actor’s engagement in the affairs of another people, and to whom is it accountable? There are other ways in which a process may assume international aspects: the development of international norms governing the process and substance of constitutions; the ability to borrow from other constitutions, which has been facilitated by the Internet and the exchange of expert knowledge; the growth of an international class of constitution-makers and international nongovernmental organizations (NGOs). The varied participation of the international community is discussed in parts 2.3.12 and 4.2.

1.4.8 Deadlock-breaking mechanisms

It is possible that at some stages of the process described above, there may be a falling-out, and serious disagreements may appear. A disagreement can be procedural or it can involve principles or substance. For a procedural question, one possible solution is to seek a ruling from the courts. (The Kenya process [2005] stimulated numerous legal challenges to the authority of the commission and the constitutional conference, including one that questioned the validity of the whole process because there was no provision for a referendum; the court supported that challenge and thereby killed the process, even though a draft had already been successfully adopted by the conference, the equivalent of the constituent assembly.) The other kind of disagreement is less legal than political, and may make it difficult to arrive at a substantial agreement, running the danger of a stalemate and deep social divisions. Here the courts may be less helpful; they may aggravate the problem by finding for one party when what is needed is a compromise. To avoid legal involvement when it merely sharpens differences, other mechanisms can be adopted. These include referring the disagreement to party leaders (as in Nepal); postponing the contentious issue for future resolution (as in Uganda and Iraq); coming to a resolution by a subsequent vote with a smaller majority; and engaging in mediation by a group of “elders.” These mechanisms are not always institutionalized—there is something to be said for informal, ad hoc arrangements. For a discussion of dealing with divisive issues, see part 2.5.2.

1.4.9 Drafting the constitution

When we talk of drafting here, we make a distinction between the process by which decisions are made on the content of the constitution and the process of writing it. For the first, there are several options. Traditionally the draft constitution was prepared by the legislature or the constituent assembly, usually through a committee. The assembly also debated and adopted the text of the draft. These days, many drafts have been prepared by a body other than the one that debates and approves the constitution. Such a body is generally called a commission; it is usually supposed to consist of experts (most in law, but also in economics, political science, and public administration). If the commission prepares the draft, it will normally be bound by certain predetermined goals and key elements of its procedure (often including consultation with the people). The assembly, being a representative body, has a greater degree of autonomy in determining both values and procedure. (See part 3.1.2 for more on commissions and assemblies.) The commission-based process has greater scope for experts, the other for politicians. How expert opinion is to be balanced by views that are more political or “populist” is decided in part by this kind of division of responsibilities.

The advantage of a commission is that this part of the process—the vital decisions on the draft constitution—can to some extent be distanced from political parties, tap expert knowledge, promote public participation, and formulate proposals oriented toward national rather than sectarian interests, and can consequently provide a fair basis for negotiations, facilitating a compromise. However, the composition of the commission is often affected by the appointment of people, not necessarily experts, as surrogates for other, usually political, interests.

Most countries have to make a choice between the normal legislature and a specially convened body to create the constitution. Two sorts of factors influence the decisions. One we may call political: historical tradition; the need for legal continuity (changes made in the way that is set out in the constitution); the legitimacy of the legislature (if widely respected, it could be entrusted with the changes); the dominance of political parties (which tend to favor the legislature); and the feasibility of fresh elections (whether before or after the process). The other factor is strategic: which body is more likely to be less selfishly interested in the outcome (the commission versus the legislature); the desirability of including representation from all sectors of society (suggesting a specially convened constitutional assembly); a value placed upon civil society (leading to a participatory process); and the urgency with which the constitution must be completed (which would favor the legislature). (See part 3.1.2.)

The actual drafting (writing of the text) is normally, and should be, left to legal drafters, who will decide on the structure (architecture) of the constitution and the language of the text. The temptation to allow assembly members to draft the text should be resisted. The fixed and relatively well understood meaning of legal terms serves well the need for precision and consistency. Drafting is also not a suitable task for a large body of people. It is important to choose drafters who have experience drawing up constitutional instruments, which are in many respects different from ordinary legislation. As far as possible, simple language should be used. Drafters should be given the freedom to use their professional judgment on the architecture and text of the constitution, but they should respect the policy decisions made by the assembly. However, it is quite proper for them to draw to the attention of the assembly a decision that seems to be unworkable, or goes against fundamental constitutional values, and then seek fresh instructions. (See part 2.6.2.)

1.4 Tasks and responsibilities in constitution-making

Constitution-making has thus become complex, involving a number of tasks and stages andthe proliferation of actors and institutions. An essential component in designing a process is to review the tasks and decide how to allocate them and obtain the resources needed to carry them out, and the sequence in which the tasks are undertaken. Subsequent sections discuss in some detail the options available for each of these issues, and some of the main tasks often undertaken as part of a process.

If the constitution is made in settled times, there are many options for the process, including a high degree of public participation. If the country is coming out of internal or external conflict, there may be an inclination toward a more controlled process, with limited or no public consultation. Increasingly, negotiations held during an ongoing conflict take the form of a constitutional settlement. In this case the process is confidential and often secret, and almost completely dominated by leaders of “warring factions,” with little room for wide public participation.

1.4.1 Resources

Constitution-making cannot, these days, be done on the cheap. The process as described below costs a great deal. Many countries that seek to make a new constitution and a new start have come through a long period of conflict, their resources depleted or appropriated by warlords, the economy shattered, facing pressing poverty and an empty exchequer. It is necessary at an early stage of planning the process to pay careful attention to the financial implications and the means of raising sufficient funds. All people are entitled to a fair, participatory, and effective process, but not every country can afford it. It is often possible to get external assistance in the form of money, equipment, and personnel, but that may be achieved at the loss of some national control of both the agenda and the process. Ways must be found to minimize costs whenever possible. Sometimes the ambitious goals of the process must be scaled down. However, if the design of the process is good and efforts are made to avoid wasteful expenditures, the international community is likely to assist. An early estimate of the costs should be made so that the process can be realistically planned and efforts to secure support from external sources can be initiated.

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.)

1.4.11 Enacting the constitution

The first decision to be made is about which body will have the primary responsibility for approving or rejecting the draft constitution. Here the choice, as noted above, is frequently between the legislature and the constituent assembly. The second decision is whether there should be more than one stage of approval. The most common instance of more than one stage is when there is a referendum. Sometimes the draft can go straight from the drafter to the people for a referendum. This seems to have happened with the constitution of the European Union, and is stipulated in the Federal Transitional Charter of Somalia of 2004, but there are few other examples. The Kenyan process [2005] erred on the side of too many approvals—a national constitutional conference (broadly similar to a constituent assembly), a national assembly, and— a requirement imposed by the courts when the process was nearly finished—a referendum. It is important that there should be ample opportunity to consider the suitability of the draft, but too many approvals place hurdles in the way of enactment, give further opportunities to the spoilers to regroup, and perhaps need to be avoided. (See part 2.7.)

The other major decision regarding the design of the process concerns the rules for decision- making; different institutions have different levels where a decision to carry on with the process or to approve the draft will be made. Here the primary question is the majority required. A simple majority may not be seen to give enough protection to minorities. The constitution- making process is an opportunity to build consensus on fundamental national values. Sometimes this is taken to mean that there must be unanimity (as in Kenya, Nepal, South Africa, Uganda and Vanuatu). If this fails, there may be a formal (Nepal) or informal (Kenya) process to settle differences. But they both, like Uganda, provided for a two-thirds majority if no consensus was achieved. A large majority is preferable if the country is deeply divided, especially on regional or ethnic lines. But it increases the risk that no constitution may be adopted. So does a rule that states that a minimum degree of support in a minimum number of communities or regions should be required in addition to an overall national vote (as in Iraq, where the draft was nearly defeated by negative votes in three governorates). (See part 2.5.1.)

Many states provide for a referendum, but, contrary to what a Kenyan court thought, it is not indispensable under constitutional principles. Its use is less than universal and it is controversial. If the earlier stages of the process are participatory, with compromises to reach a consensus, then it may be unwise to put what has been achieved at risk. Referendums can be divisive, increasing tensions in society (as the experiences of Iraq [2005] and Kenya [2005; 2010] show). However, the Maldives (in 2008) made an interesting use of the referendum to determine only one issue, which had become extremely contentious—whether the executive should be parliamentary or presidential. Once that was resolved, the constituent assembly (the Special Majlis) proceeded quickly to adopt a new constitution. If the issue to be resolved touches on self-determination, a referendum can be a useful device to discover the people’s preference (as has been proposed regarding secession in Canada, and carried out in Bougainville, New Caledonia, and South Sudan).

1.4.12 Implementing the constitution

Constitutions that are the product of long negotiations in which different interests are carefully balanced, or that seek to make fundamental changes in the organization of the state and society, or that are agreed to under external pressure, are not easy to implement. Many provisions, particularly those dealing with values and ethical standards, or institutions aimed at accountability and the rule of law, may remain weak. Therefore special attention needs to be paid to the mechanism for a constitution’s implementation and enforcement. This is seldom done as part of the constitution-making process. In some recent processes this matter has been addressed by a variety of measures: a schedule (an annex) in the constitution dealing with transitional matters; another containing a list of legislative and other steps necessary for implementation and deadlines for action; an independent commission with responsibility for supervision and implementation; a constitutional provision that principles should be implemented by executive authorities so far as possible, even if no legislation has been passed; a provision that courts should be able to give orders within the same framework; the empowering of civil society to participate in the implementation and mobilization of the constitution; and making the implementation of certain principles a condition, for example, for the assumption of specified powers by the executive or the legislature.

1.4.2 Sequencing the process

By “sequencing,” we mean how the different stages are organized and ordered, whether there are clear demarcations among them, and whether the commencement and the conclusion of the process depend on collateral processes and decisions. There are two distinct issues here. The first arises when constitution-making is part of a wider process of ending armed conflict and establishing a peaceful order. The question then is: at what stage does constitution-making become feasible and central? There may be important preliminary questions to be resolved first: a cease-fire, the control of weapons, other confidence-building measures, tentative understandings about truth and reconciliation processes, negotiations of impunity, and some interim arrangements (such as allowing rebels or excluded groups a role in day-to-day government), before the parties negotiate the principles of the new constitutional order.

These considerations were critical in South Africa, and on the whole the sequencing that led to the adoption of the final constitution facilitated the constitution-making process. On the other hand, Nepal’s recent experience (beginning in 2006) shows that unless these matters are first dealt with satisfactorily, the parties can get bogged down in the constitution-making process. However, some broad agreement on how the country is to be governed in the future (i.e., the principles of the new constitution) may be necessary to deal with the preliminary issues mentioned above. Sometimes a specific national situation governs the question of timing. It is said that the Philippines’ Cory Aquino wanted a constitution urgently after her election and the overthrow of Marcos because she was afraid of a coup by the military and felt that a new constitution would minimize its power and deter it. There was no such urgency in Nepal; the king had been forced to give up his powers, and a preliminary agreement between the Maoists (just ending their insurgency) and the “democratic” parties had established a satisfactory basis that allowed them to set a more leisurely pace for a new constitution.

In a situation where conflict has not entirely ended, one relevant factor in the decision to proceed with constitution-making is the consideration of the stage at which maximum public participation might be possible, which may be well beyond the time of the cease-fire. It can sometimes happen that such participation broadens as the process moves on, as matters settle and people begin to feel more secure. We suggest below that one option, when significant public participation is not feasible, is to focus on interim arrangements, promoting as much public participation as possible but keeping the option of a more participatory process open for later. (See parts 2.1.9 and 2.2.2.)

Other tensions in conflict or postconflict constitution-making are the balance between peacebuilding, which may be favored by the international community, and local public pressures for a new constitution; incentives for the cessation of fighting versus trials for war and humanitarian crimes (raising difficult questions of impunity, compounded by the prohibition of amnesty under emerging international norms); and the choice between holding elections before the process and the imperative of confidence-building among the warring factions and between them and the public.

The second context in which the issue of sequencing arises is when the conditions for constitution-making exist, and the question is how best to organize the necessary tasks. The sequence depends on various factors, including the extent of public participation and the distribution of responsibilities for the different tasks. The sequence also depends on the purposes of the process, which can include national reconciliation, nation-building, and democratization. The first step is to agree on the need for constitutional reform, the principles underlying it, and the modalities of the process. The next is to engage the public in the process by providing civic education and information about the process and soliciting the views of the people on constitutional reform. There are different ways in which the people can be engaged; the choice may be to seek public opinion on the basis of a questionnaire or through an open-

ended process, or indeed on the basis of a draft constitution—or a combination of these. A central task is the drafting of the constitution, and here a critical issue is to determine who should have the principal responsibility for it. The debate on the draft constitution and its enactment are the next stages, which are often considered the final ones. But the adoption of a new constitution is only the beginning of the task of establishing a new political and social order, and it is extremely important to consider strategies for implementation as part of constitution-making.

A special issue in sequencing is whether constitution-making should follow or precede elections. Scheduling the process before regular legislative elections may be helpful, as delegates are less likely to know what their positions would be in subsequent electoral contests or in government. They are likely to take a longer view and attend to a range of interests broader than their narrow personal interests.

Another general sequencing issue is whether the people should be consulted before or after the preparation of a draft. Subsequent consultation gives the public a chance to comment on concrete proposals, but prior consultation provides greater scope for the expression of public views and the enhancement of people’s initiatives. It is possible to have public consultation both before and after the draft is prepared, which is becoming the common practice (as in Kenya and Bolivia).

Throughout this constitution-making process many individuals, parties, communities, and interest groups play a part, give of their time and engage their passion, lobby for different values, institutions, and procedures, teach or learn about constitutions, deliberate, and decide. So when planning different stages, it is necessary to agree on the role of these actors: how they are to be represented, how they will express their views, and what part they will play in the actual decision-making.