2.1.2 Deciding if a process is needed

No constitution is perfect, but this does not mean that a country needs a whole new constitution. Sometimes it may be a mistake to rush into a commitment to such a new constitution. People may insist on this precisely because they have not analyzed what is wrong with the existing constitution. “Let’s start from scratch” is a way of avoiding, at least for the time being, such detailed analyses. Before embarking on a major exercise of constitutional design, the question should perhaps be asked: “Is our journey really necessary?”

A problem with the government does not necessarily demand a new constitution. The people of the Philippines have resorted on several occasions to “people power” to remove governments, but though there have been initiatives to implement a different constitutional system, it is not assumed that immediate change is needed. The Kriegler report on postelection violence in Kenya observed that:

it is important that Kenyans honestly assess all the activities related to the 2007 generalelections so as to distinguish between those that can be attributed to anomalies, failures, and malpractices traceable to gaps or provisions in the constitution and laws of Kenya from those that can be attributed to a bad culture encompassing impunity, disrespect for the rule of law, and institutional incompetence (Kriegler Commission 2008).

There are arguments against constitution-making, including:

  • Expense. The costs of constitution-making in Africa have been estimated, in United States dollars, as the equivalent of $30 million for South Africa, $10 million for Uganda, $6 million for Ethiopia, and $4.5 million for Eritrea (or between 15 cents and $1.50 per person in the country).
  • Divisiveness. Constitution-making may be a great nation-building event, but if the wounds are too recent, or the process is not handled with extreme delicacy, the process may give rise to renewed or new conflicts.
  • Risk of failure. A majority of constitution-making processes may be said to have failed, in the sense that they have not led to the enactment of a new constitution.
  • Constitutions should have some permanency. A constitution that is changed frequently is not really a constitution at all, for it does not guide or regulate the affairs of government. Making a constitution work is not easy; it does not work unless politicians, citizens, courts, and other institutions take it seriously and take steps to make it work. A belief that problems can be solved by the mere adoption of a new constitution is a delusion.
  • None of this is intended to suggest that major constitution-making exercises are futile, but it is important to consider whether making a new constitution is necessary, or necessary immediately, or whether a more modest, incremental approach should be taken.

More modest enterprises

In some countries it may be enough to change a fundamental problem with the constitution, leaving the bulk of it unchanged. It might be more practical to have a simple process of review by a small group of experts given a limited task over a limited time, with the opportunity for public consultation, rather than a full-fledged process, which in some countries can be expensive, time-consuming, and even divisive.

There is a relationship between the complexity of the changes anticipated and the elaborate nature of the process that is set up. On the one hand, naturally, the more fundamental the changes, the more public input there should be. On the other hand, if an elaborate process is set up, it is quite likely that far-reaching proposals will be made, even if the initial mandate is limited. The original French constituent assembly was given the task of voting money for the king, but it seized the moment and became the government and the collective author of the constitution. Similar things have happened in West Africa, where national constitutional conferences have introduced changes that were more radical than had been anticipated.

Is a more modest approach feasible? Even in “no constitution” situations, it may not immediately be necessary to embark on a major constitution-making process; limited, temporary arrangements may be possible. Israel provides an interesting example. It became a separate country in 1948 and planned to hold a constituent assembly. But it was immediately invaded and, since there was a feeling that 1948–49 was not the right moment because of the potential for disagreement (mainly over the connection between religion and the state), it abandoned the constituent assembly idea and, over the years, has enacted a constitution in bits. (It simply used the United Kingdom’s pattern of government as its basic framework.) Various efforts to produce agreement on a single constitutional document have not borne fruit. In Chile and in Indonesia, major efforts at constitutional reform have not been successful, but over a period of years various changes have been enacted to move each country away from autocracy.

The constitutional moment?

It is sometimes suggested that certain situations make it more likely that a country will be able to prepare and adopt a new constitution. Some people feel that a crisis, or the perception that there is a crisis, is a prerequisite—indeed, that a country at peace with itself will rarely be able to make a new constitution. The “crisis” argument holds that a sense that something serious will happen if there is no constitution creates an impetus for parties whose rivalry might otherwise prove an obstacle to agreement to work together. A sense of shared excitement about the future may serve a similar purpose, though it is rare for all sections of society to share that excitement, as the recent experience of Bolivia shows.

Some countries have, however, made constitutions, or carried out major reviews, while at peace. Canada, Finland, and Switzerland are recent examples.

It is not always easy to predict whether the circumstances will be right for adopting a whole new constitution. This is perhaps particularly so with a major review, which may take some years, and which may result in a radically different situation than existed at the beginning. This was what happened to the Kenyan process—especially because there was an election partway through the process, and the incoming government was unenthusiastic about the proposed changes.

Not all constitutional moments are suitable for the adoption of improved constitutions. in 2010, the president of Sri Lanka capitalized on his military victory over the Tamil rebels to introduce sweeping changes to the constitution—some of which enhanced the power of his office and his personal power.