2.2.1 Introduction to public participation issues

Changing modes of making the constitution

Focusing on public participation helps us understand the complexity and dynamics of constitution-making. It alerts us to the variety of interests and groups that often become involved, or may want to become involved, in making a constitution. It points to the degree of inclusion in a process. It may give some guidance about the kinds of issues likely to dominate the constitution-making process. It draws attention to the relative strength of the participating groups, often pointing to the dominance of one or more groups. It can help lift the veil from the official process by giving insights into the actual negotiating and decision-making processes, where the key decisions are really made. It can also show the influence of outside forces (which on the whole do not feature in the design of the formal process), often away from the glare of publicity, and give some indication of how nationally autonomous the process has been. (See part 4.2 on the role of the international community.)

The importance of broad popular participation in constitution-making processes has varied historically and regionally. In a country where there is a tradition of interest-group organization and representation, even if that has suffered interruption, direct popular participation in the process usually receives low priority. The greater level of media activity and the stronger tradition of representation help ensure that people have a chance to hear debates on constitutional issues without necessarily having direct involvement in the official process. They may also be able to convey their views through established channels, rather than through special participatory arrangements established as part of the constitution-making process. By contrast, where civicgroups, unions, media outlets, and political parties are few, less established, or of limited reach, establishing special arrangements for direct involvement of the citizens is usually more necessary as a way to convey and obtain information, enhance the public orientation toward law, and build constitutionalism. For these reasons, popular political participation attracts a higher priority in Africa, Latin America, Asia, and the island Pacific.

Other significant factors in the increasing focus on public participation in constitution-making processes include the restoration of democracy in many parts of the world since the late 1980s and the increasing recognition of people’s sovereignty, the constitution being the basis of the organization and functioning of the state. The right to participate is provided for by several international norms, particularly the right to take part in public affairs (article 25 of the International Covenant on Civil and Political Rights), the right of minorities to self-rule (the United Nations declarations on minorities and on indigenous peoples), and the right to self- determination (the charter of the United Nations, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights). Some authorities regard these and other human rights instruments as perhaps a basis for a right to participate in constitution-making. Despite these normative and practical reasons, there is considerable controversy over the desirability of public participation. Before we consider the controversy, let us describe what we mean by “public participation,” major participants, and principal methods of public participation.

Meanings and aspects of public participation

Public participation has many aspects. The distinctions we may draw are: (a) direct versus indirect participation or representation (indirect raises questions of method of election or appointment and of accountability, or reporting back); (b) participation in discussions, lobbying, and the like versus participation in decision-making; (c) participation as part of an official process versus informal participation, with people taking their own initiative.

Public participation covers a broad spectrum of activities, including voting and standing for elections; being part of decision-making (in various state institutions, particularly the legislature and the executive), perhaps with a veto on some matters; opportunities to influence official policies; forms of self-government, such as autonomy; and consultative bodies. Public participation in constitution-making processes is more specific, directed as it is toward influencing the final outcome of the process, the constitution. However, even here public participation takes a variety of forms. It includes much more than formal procedures for receiving people’s views, and extends to private initiatives to mobilize support and lobby constitution-making bodies, which often take place even if there is no such formal procedure.

There is no set pattern; the extent and form of public participation depend on the overall design of the process. Sometimes there may be a deliberate attempt to limit public participation. The reason may be a distrust of the people in general, perhaps because of their lack of understanding of constitutional matters or of moral judgment, the fear of a populist constitution, or a wide reform agenda with major implications for the allocation of resources. It is sometimes said that after World War II, the lack of trust in mass politics led to restrictions on public participation in the constitution-making process (especially in Germany and Japan, although in the latter case the fear was that public pressure might prevent the political reform that the Allied powers deemed necessary).

Public participation can occur at many stages of constitution-making, and can take several forms. It may be more intensive in some stages than in others. The preprocess stages may be undemocratic; the prior principles may have been negotiated between closed groups or factions. The eighteenth-century process to develop the United States constitution became more open and participatory as it progressed, after the constitution had been drafted. But in some cases, the earlier stages may be the most democratic and participatory: massive protests and engagement by thousands of people may have been instrumental in getting the process started (as in the Philippines [1987] and Kenya [2005]). At some stages public consultation may be wide-ranging, with several opportunities for the public to express views before the draft is prepared. And even when an initial draft has been prepared, there may be ample opportunities to comment on it before final decisions are made. There is nothing like getting your teeth into a concrete set of recommendations after what might have been a bewildering array of proposals and counterproposals. Sometimes both the initial and the concluding stages might restrict public participation, as decision-making is often facilitated by some degree of secrecy.

The process may sometimes begin with initial discussions about the parameters and guidelines for future talks. This has been characterized as talks about talks. (Proceedings 2007). (See part 2.1.9 on interim constitutions.) This is usually an elite affair, often undertaken in private (as in Iraq, in Nepal, and in the failed Sri Lanka talks)—although in South Africa and Spain voters were allowed to ratify the outcomes of such initial processes through elections. Often interim arrangements themselves restrict public participation (as in Afghanistan and Nepal).

The degree of public participation in the actual preparation of the draft constitution varies. There is often considerable public participation when the draft is prepared by an independent commission (in Kenya and Uganda, the commission was required to promote public participation and to follow public recommendations in drafting the constitution). Preparation of a draft by a separate commission is a common pattern. When the draft is prepared by a committee of the legislature or of the constituent assembly itself (a rather less common arrangement) both public participation and transparency are less evident.

When the draft is being debated and enacted, public participation decreases, as the members of the relevant body (usually the legislature or the constituent assembly or an equivalent body) focus on the draft—adopting, rejecting, or amending it. But even here, public participation can continue through lobbying, petitions, public demonstrations, and the like. Some processes provide for referral to the people by referendum to resolve outstanding issues, but the use of this device has been limited. (See part 2.5.2 on dealing with divisive issues.) A more common

use of referendums is to determine whether the draft constitution produced by another body (such as the legislature) should be adopted, and that provides a further opportunity for the public to review the merits of the draft. Often, the final decision on the adoption of the constitution as a whole lies with the legislature or with the constituent assembly. But when the draft is put to a referendum, the final decision rests with the people—the highest form of public participation.

The impact of public participation

The impact of public participation does not depend only on formal provisions about how the constitution-making process and participation in it are structured. Much depends on the persuasiveness of the public submissions, or the political clout of the lobby (e.g., how closely it is connected to powerful interests), or the zeal with which organizations carry on their campaign. The submissions may be addressed to the constitution-making body, but they also seek to mobilize the people and win their support, to put pressure on the decision-makers.

Impact also depends on the approach of the decision-making body to the collection and analysis of the public’s views and the importance it attaches to them. The manner in which official bodies (constitutional commissions, constituent assemblies) process the oral or written submissions made to them is critical. (See part 2.2.4.) The submissions can be manipulated, or analyzed with a bias, or some views may even be suppressed.

Public consultations can come from the top down or the bottom up. They mostly come from the top down (when initiated by political or civil society elites), but sometimes there are attempts at public consultation that arise from the bottom up, as in Kenya and Uganda. In Nepal they primarily came from the top.

How people are instructed in constitution-making tasks and their sequencing, the manner in which they can address the commission or the assembly, who provides civil education, and the monitoring of the process for impartiality are all crucial elements in the effectiveness of public participation.

The transparency and authenticity of the analysis of views are fundamental to the credibility of the entire process. In Kenya the decision-making bodies engaged in extensive public consultation, painstakingly analyzed public views, and reflected them in the draft and final constitutions. In Afghanistan, the decision-makers were essentially political leaders; the commission was not an independent body, and the views that had been collated and analyzed by the research section and the Afghan secretariat were ignored. The importance of careful analysis of public views is crucial when the institutions for constitution-making are enjoined to incorporate the people’s recommendations. (See part 2.2.4.)

The relevance of decision-making bodies

The focus of the literature on public participation is often on the interaction of the people with the decision-making bodies. Equally important can be the composition of these bodies and the rules whereby decisions on the constitution are made. It is often said that a constitutional commission should be independent and consist of experts, and that constitutional assemblies should be elected through proportional rather than majoritarian voting systems. But little has been written about the independence of the members of the assembly. (In Nepal they were all elected under the auspices of political parties and were subject to party whips.) And how the people interact with the assembly once it has embarked on the decision-making stage is also important. This bears on the rules of procedure, which determine the openness and transparency of its committees, public hearings, and the like. All too often these rules are taken from the standing orders of legislative bodies—which may be quite inappropriate for a body charged with making a constitution. This seems to be an under-researched issue. In participation by delegates, the extent and quality of public participation depends heavily on the rules of procedure and the autonomy of the assembly. Participation by citizens depends on the political, consultative, and lobbying activities of the people and their organizations.

Participants

The concept of “the people” (or “the public”) is more complex than is usually realized. A proper assessment of the impact of popular participation cannot be made if the concept of “the people” is not disaggregated. There is no such thing as “the people.” Rather, there are religious groups, ethnic groups, the disabled, women, youth, forest people, pastoralists, “indigenous peoples,” farmers, peasants, capitalists and workers, lawyers, doctors, auctioneers, and practicing, failed, or aspiring politicians, each pursuing his or her own agenda. They bring different levels of understanding and skills to the process. The key players in the international community pursue their own objectives. Sometimes the composition or procedure of bodies with decision-making roles in the constitution-making process may privilege one or another of these groups. Unless one believes in the invisible hand of the political marketplace, not all such groups can be counted on to contribute to producing a “good” constitution. The proper and fair management of public participation is essential for a good process. (Despite the complexity involved, we cannot avoid sometimes using the terms “the people” and “the public,” but where we do, the considerations just discussed may need to be borne in mind.)

An agreement may be easier if the parties to the process are limited and the talks are confidential (but sometimes bringing in new groups may help—bipolar disputes are difficult to resolve). However, even when successful, these agreements and the ensuing constitution may depend excessively on the goodwill of the negotiators and may fail to respond to the concerns of the people. They may lack firm social foundations.

Particularly problematic is the participation of groups that have used violence to pursue their objectives (especially in postconflict situations). They have demonstrated a lack of commitment to human rights and the peaceful resolution of differences. Often they demand preconditions for peace talks and constitution-making, including amnesty for violations of the

rights of others and the disruption of the peace. Such amnesties are controversial and make others feel that the perpetrators of violence or abuse will simply reassert their power and undermine the security and well-being of others. On the other hand, the refusal to make some accommodation with them can complicate the peace process (as Iraq discovered with the “lustration”—exclusion from holding public office—of thousands deemed to be part of the Saddam Hussein regime). Giving amnesty for past offenses on the condition that no fresh violations will take place may be an incentive to stop violence. Sometimes the solution may be to postpone the question of accountability.

In some countries where there is deep mistrust of politicians, the predominance they normally enjoy in the constitution-making process has been questioned. It may be said that they have narrow personal or party interests, closely connected to their access to and exploitation of the state and its resources, which they try to advance or preserve through the process. They may also have an interest in fomenting ethnic differences to maintain their leadership positions, regardless of the national interest, and thus their role can be deeply divisive. Since in one sense the politicians can be the principal beneficiaries of the resources of the state, it can be argued that their influence on the making of the constitution of the state should be limited. However, attempts to reduce that influence are seldom successful, and in practice a constitution can seldom be made without their full participation, as they control the state and the institutions of the constitution-making process.

Assessing the impact of public participation

It is not easy to evaluate the impact of public participation. It is easier to assess the role of rules and procedures in the official process. Traditionally, public participation and the concept of constituent power have been examined in the context of the primary procedure for decision- making: for example, either the referendum or the constituent assembly. Studies on constitution- making focus primarily on the decision-making bodies, and for the most part ignore the pressures that might be brought on the decision-makers. For a complete picture, it is necessary also to look at the informal processes, the mobilizing of the support of groups and communities, and the contribution of civil society in terms of ideas and organization. Partly with the help of emerging regional or international norms, many groups (women, the elderly, the disabled, indigenous peoples) are able to mount impressive campaigns of their own making. Moreover, the efforts and influence of some groups are evident or transparent, but some (e.g., international actors, key embassies, and international agencies) shape the process behind closed doors.

Another difficulty in making this evaluation is the lack of agreement on the criteria for assessment of the impact of public participation. Sometimes the focus is almost exclusively on whether a new constitution was achieved, regardless of its quality. At other times the focus may be the reverse: whether a bad constitution was prevented. Or the focus may go beyond the actual document to the dynamics of the process and the wider outcome from societal or political viewpoints: whether the process was healing, whether it stimulated constructive public debate, whether it led to a more informed and activist citizenry. It is not difficult to imagine how different groups may choose to place their own emphases in their assessments.

The impact of public participation may be examined by reference to various factors, including the following:

  • its effect on the outcome, i.e., the content of the constitution;
  • the resolution or creation of conflict, particularly national unity or disunity;
  • the broadening of the political reform agenda;
  • the responsiveness of the constitution to national aspirations and issues;
  • the legitimacy of the constitution;
  • its effect on people’s consciousness—understanding the machinery of government and enabling people to evaluate the policies and pretensions of politicians;
  • its effect on people’s empowerment, and their willingness to participate in public affairs; and
  • the promotion of understanding and support for constitutionalism.

On these and other issues there has been limited research, and as yet few well-informed judgments; these factors have contributed to a range of competing views. More research, particularly of an empirical kind, is necessary. Here we present the main arguments or assertions of the proponents and critics of general public participation.

Potential opportunities in public participation

In addition to the normative principles mentioned at the beginning of this section, there are practical justifications for public participation. In some countries, especially in Asia, the island Pacific, and Africa, political parties are not mass based and do not represent sections of the people with some degree of common interest (as parties often do in Western countries). Nor are there many intermediate bodies that can speak for the people. Often the only alternative, if it is considered desirable to engage the people, is their direct participation, in slums, villages, and small towns.

Public participation is deemed to strengthen national unity through an inclusive process, reflecting religious and linguistic diversity, by resolving national differences and striking a balance between national identity and values and those of regional or cultural communities. The involvement of the people in the constitution-making process has the potential to reconcile conflicting groups. Public participation empowers the people by acknowledging their sovereignty, by increasing their knowledge and capacity, and by preparing them for participation in public affairs and the exercise and protection of their rights.

People’s participation is important to expand the agenda of constitutional (and social) reform. Generally the agenda is defined by elites, largely urban based. When invited to give their views, members of rural communities and workers are likely to present new perspectives on issues

such as public participation, decentralization, land, basic needs, and the accountability of members of parliament and local officials; these perspectives are firmly rooted in local realities. Popular engagement can bring to the dialogue different social forces, interrogating the assumptions of the elites and officials, and to some extent setting up a counterbalance to politicians. Until recently, almost everywhere politicians have played a decisive, and sometimes the exclusive, role in constitution-making. But worldwide, there now appears to be cynicism and suspicion about the motivations of politicians and political parties; they are seen as serving their own narrow, partisan interests. The broadening of the reform agenda that comes from popular participation is an important corrective. Public participation often leads to an emphasis on values and morals, the responsibility of the state, and the integrity of officials, while politicians focus on state powers and institutions.

Public participation can seldom be effective without civic education, which enhances understanding by “the people” of the structures and mechanisms of the state and its obligations to its citizens, which are often protected through fundamental rights. The people learn about the ways to monitor state institutions and about accountability. They may thus acquire knowledge and respect for the principles of constitutionalism. Possibilities for public participation, together with the possibility of funding, may help create and develop civil society, not merely reflect it.

A broad consultative process may also reduce the risk of bad surprises that sometimes occur during a process, such as the sudden discovery that support for an agreement has disappeared because a disaffected, unrepresented party has mounted a public campaign and has swayed popular opinion—or that at a late stage, politicians have made a deal to sabotage the process or have agreed on constitutional provisions unfavorable to the public interest. Bringing the public into the process makes it less likely that deals will be struck that will be undone immediately.

Some say that a constitution produced through a widely participatory process will be more stable, with prospects for longevity; it represents a considerable consensus and is responsive in that there will be fewer demands for renegotiation down the road. There is also a widely held belief that public participation endows the constitution with considerable legitimacy and leads to a feeling of ownership by the people and a corresponding resolve to defend it against sabotage.

Potential risks of public participation

Supporters of public participation have been criticized for romanticizing “the people.” The reality, the critics say, is much less edifying. People may not be generous or willing to enter into serious discussions with others. They may seek only self-interested positions that can continue to fuel rather than resolve conflicts. A significant part of the reason for such problems with public participation is that “the people,” and even leaders of significant social groups, often have a limited understanding of the proper role and scope of the constitution. Whether they are conservative or populist, people may be intolerant, prone to manipulation by fundamentalists, contemptuous of experts, and long-winded, and their participation may unreasonably prolong the process.

One fear about public participation is that in a divided society the debate may revolve around ethnic axes rather than the national axis. Politicians with an interest in the mobilization of ethnicity will push the interests of their communities. This not only obscures the national interests but also leads to fragmentation and competing claims based on ethnicity. When the distinction is based on religion, the discourse becomes increasingly religious, forcing religious values on the whole country. When the basis is ethnicity, cultural differences may lead to serious disagreements on issues such as choice of national language and protection of minority rights. In either case, those who are not well placed in the religious or ethnic order may find that their voices are silenced and that their lowly position is unlikely to be remedied. Concessions to cultural norms and hierarchies may devalue the rights of individual citizens, by the constitutional recognition of the community as an important bearer of rights.

The constant emphasis on culture may result in constitutions that are no longer congruent with dominant international economic and social forces. In the process the gap between the constitution and social and economic realities widens, often increasing the risk of future conflict.

On the other hand, public participation opens up the process to external influences. In constitution-making processes in many parts of the world (especially Africa, Asia, and the island Pacific), most resources for civic education (an essential precondition for public consultation) come from Western governments, either directly or through a few international agencies. Materials used for civic education are heavily influenced by international norms and the practices of Western states. Insufficient attention is paid to national history or culture (which may be seen as inconsistent with human rights norms). Young college graduates from the West are normally sent in to assist local nongovernmental organizations (NGOs), which in most cases are totally dependent on external funds.

Box 10. Veil of ignorance

The philosopher John Rawls suggests that the best way to design a society would be for everyone to operate in a rational, self-interested way, but behind a “veil of ignorance” that conceals from everyone his or her own characteristics: male or female, with a disability or without, language, tribe, religion, and age. Negotiations between such rational but ignorant people would produce a system fair to all (Rawls 1971). In the real world it is not possible to ensure such beneficially ignorant constitution-makers. There may be moments in a country’s history when groups are ignorant—“How many of us are there in this group?” “Are we likely to win the next election?” Those may be good moments to produce a fair constitution—and if the moment passes, attitudes may harden and fairness fade.

Those NGOs, responsible mostly for civic education and sometimes for the collection of public views, have also come under attack as promoters of public participation. The bases for the critiques include claims that such bodies are dependent on outside, often international, sources; responsive to economic opportunities (“fundraising”); urban based; nondemocratic (not membership organizations); bureaucratic; competing for money and roles; not particularly knowledgeable about constitutions; and often allied to political (including ethnic) parties.

A participatory process tends to be the opposite of “the veil of ignorance.” John Rawls’s theory of the veil of ignorance is based on the assumption that decision-makers do not realize who they are (black/white, male/female, high caste/low caste) and so vote not for a particular interest but for the general interest (Rawls 1971). In the participatory process, the purpose is to engage with individuals and groups with differing interests so that they can advance those interests (not the general interests of all groups and citizens). Particular interests are often pursued with vigor and sometimes intimidation.

The variety of interests (frequently conflicting) usually involved in a highly participatory process makes it hard to find reasonable agreement. The difficulties are compounded when there is an emphasis on achieving consensus on major constitutional issues. A great deal of time and effort may then be devoted to trying to build a consensus, with complex bargaining. Sometimes a small group may end up effectively having a veto. Although processes often provide a mechanism for coming to a decision in the absence of a consensus (see part 2.5.2 on dealing with divisive issues), the process becomes lengthy (well beyond the point when the public can make any further useful contribution). The constitution itself may also tend to be lengthy, as a settlement may be possible only with the acknowledgment of the claims of many interests.

Sometimes the consequence of a participatory process in a deeply divided society is that decisions are made not in accordance with the participatory and transparent manner of the formal process but secretly, by a small group of influential members or even nonmembers.

So the process of decision-making may be driven less by “deliberation” (i.e., the fair consideration of all positions, guided by values of democracy and the general welfare) than by populism and crude bargaining. Some say that this defeats the objective of a constitution, which should be to provide a general set of provisions addressing national interests in a rational manner.

A participatory process can sometimes generate a feeling (especially among minority groups) that this is their one opportunity to achieve their objectives, even if those objectives have no particular constitutional significance. And influential groups, distrustful of politicians, may seek to constitutionalize what are essentially matters of policy, not a framework for decision-making. Both these factors may work against “deliberation.”

The prospects of a deliberative approach may also suffer from the holding of a referendum. The reason is that in the hope of encouraging a “yes” vote in the referendum, decision-makers may be influenced to include provisions in the draft constitution that they believe are most likely to be accepted by the people or even by some particularly troublesome group (often religiously or ethnically oriented). In doing so they may dispense with what is rational and feasible. (See part 3.5 for a discussion of the use of the referendum in constitution-making processes.)

The role of experts (see part 3.4.1) is often marginalized in participatory processes. Once the people get into the tempo and spirit of constitution-making, and gain a sense of ownership of the process, they tend to disregard, even disdain, professional advice (which is often rooted in more conservative traditions). This may also lead to the neglect of what some regard as the “cautious” rules for the method and scope of constitutions. The form of bargaining that attends a participatory process may lead not only to a lengthy document but also to a constitution lacking internal coherence. A particular casualty may be the workability of the constitution, due to the burden placed on it to accommodate a variety of interests. The ambitiousness of the constitution may then exceed the capacity of the state, and may in due course lead to the delegitimization of the constitution.

Conclusion

Views on the consequences of a participatory process are sharply divided between its supporters and its opponents. The differences are based partly on ideological factors, partly on practical grounds. Hitherto there has been relatively little scholarly attention paid to this debate, making generalization difficult. Greater attention needs to be given to the dynamics of public participation, the phases where such participation is appropriate, and the methods of public participation.

There are clear advantages to public participation, both for the process and for the long-term prospects of constitutionalism. Most of the objectives of a constitution-making process, such as promoting reconciliation, strengthening national unity, or broadening the social agenda, cannot be achieved in the absence of public participation. There is also now consensus that certain norms, based on the principles of self-determination and political rights, should be incorporated into the design of the process.

But the dangers of public participation are also real. The challenge is to avoid the perils of manipulation of the people by interest groups, ethnicization of opinion, populism, and so forth. Otherwise the constitution-making process will become just another form of politics and not a deliberative process that generates consensus-building and reconciliation. It should promote conversations not only between the people and the constitution-makers (constitutional commissions, constituent assemblies, and the like) but also among the people themselves. This can make them aware of the histories, contributions, anxieties, and aspirations of others, and deepen the understanding that is so critical to developing national unity, conflict resolution, and peacebuilding.

A deliberative process requires public participation opportunities that are not isolated but instead provide ongoing chances to discuss and engage with the design of the process, the key issues, the development of the draft, and the implementation of the final constitution. The next sections focus on the practical and other key aspects of preparing the members of the public to participate through civic education efforts and consulting them at various stages of the process.


2.2.2 Preparing the public to participate: Civic education

Making a constitution involves multiple choices about issues of great complexity; those responsible for making the choices usually need a significant level of information about the issues involved beforehand. (See the discussion in part 1.1.) In a highly participatory process, the people of the country in question are asked to contribute to the making of choices, which can extend to issues that could be quite difficult for the majority of people to understand— issues such as the numerous tasks and institutions involved in a constitution-making process, and the reasons for and steps involved in making a constitution more difficult to change than an ordinary law (entrenchment). Without access to information about the process or knowledge about constitutional choices being considered, as well as basic civic knowledge, most members of the public will have little opportunity to participate meaningfully in the process.

As a result, civic education is at the heart of a participatory process. For the purposes of this handbook, we define “civic education” in a constitution-making process to be any activity that helps prepare the public to participate, both before and after the constitution is prepared and adopted. Before the constitution is adopted, preparing the people involves enhancing their knowledge of not only the constitution-making process (so as to improve understanding of the nature and extent of opportunities to participate), but also the roles of a constitution and the choices in relation to content that are available when making a new constitution. After the constitution is adopted, preparing the people means developing their capacities and knowledge to engage in public affairs and to exercise and protect the rights that the constitution extends to them. It is important to note that participation in the process is also a form of civic education and if the participatory process is credible it can transform attitudes and beliefs as well as educate.

Civic education is widely recognized as an important part of constitution-making processes, especially highly participatory processes. It is referred to in the official mandates of some constitution-making bodies, one example being the Uganda Constitutional Commission, in respect of which the Uganda Constitutional Commission Statute of 1988 provided a power to “stimulate public discussions and awareness of constitutional issues.”

Any civic education program should be inclusive, open, and credible. Because the constitution has an impact on all people in the country, it should represent everyone—all age groups (from schoolchildren to the elderly), and every possible significant group within the society, whether defined by class, culture, ethnicity, religion, or on any other basis. It should prioritize reaching those who seldom participate in the political life of the country (such as minorities and marginalized groups). Successfully preparing the people in this regard is not just a matter of holding an isolated event or workshop, but an ongoing process of cultivating a culture of public participation and democratic values and practices as well as constitutionalism.

This section provides an overview of civic education objectives, a discussion of which bodies or actors should carry out this task, and a description of some of the methods that have been used in past processes. It also includes an analysis of some of the common problems associated with implementing more formal civic education efforts in constitution-making processes. It concludes with some practical tips for improving civic education workshops.

Key stages of civic education

The key stages of a constitution-making process at which civic education efforts are often carried out, and the main likely objectives of civic education at each such stage, include the following:

  • Before the first main steps in the process begin, when the main goals of civic education relate to informing people about the process, including alerting people to the opportunities for public participation and the manner in which they may be able to participate in the process, and (depending on the nature of the process in question) could involve efforts to prepare the people for their views to be sought in the early stages of the process on issues such as:
    • how later stages of the process should be designed; and
    • the agenda of issues to be considered during the process.
  • Prior to the constitution-makers reaching decisions about the constitution, when the goals of civic education would include helping inform people about issues related to the process, such as:
    • how the process is being structured and conducted;
    • the objectives of the constitution-making process and the principles that will guide the work of the constitution-making body, if any; and
    • roles the public can play in the process and how they can participate.

Box 11. Civic education in Rwanda prior to the referendum [2003]

Two years of civic education preceded Rwanda’s referendum. Copies of the draft constitution were distributed and intensive efforts were made to reach marginalized groups, including those who could not read or write, to inform them about the contents and help them decide whether to vote for the draft. These efforts seem to have led to high voter turnout and an overwhelming vote in favor of the constitution.

Civic education at this stage would also inform them about issues concerning the nature of a constitution and the kinds of choices that can be made when deciding on a new constitution, including such issues as:

  • what a constitution is and what it can and cannot do;
  • the constitutional history of the country and why a process of constitutional reform is necessary;
  • democratic principles, institutions, and practices to promote more democratic behaviors and attitudes; and
  • key constitutional issues so that the public can provide thoughtful input during any public consultation.

Box 12. South Africa [1996]: Preparing the public to participate

The leaders of South Africa’s constituent assembly were not legally mandated to carry out civic education. They announced that they would engage the members of the public and consult them about the constitution because it would create a sense of ownership and legitimacy for both the process and the constitution. The administrative management body of the assembly established a community liaison department, which took four months to plan the participatory process. Emphasis was placed on reaching as many citizens as possible, including illiterate and disadvantaged citizens, using open constitutional public meetings, meetings with civil society organizations on specific issues, an advertising and media campaign, and civic education workshops.

The community liaison department worked in close coordination with the constitutional assembly’s media department to develop a campaign to raise awareness that a process was happening (many other governmental reforms were also competing for attention) and to encourage the public to participate. The media campaign emphasized the role of the public in the process, the advertisements including messages such as “It’s your right to decide your constitutional rights” and “You’ve made your mark” (meaning “You voted; now have your say”). The first month was a pilot phase. External groups were contracted to evaluate whether their messages were effective, enabling them to be revised along the way.

The community liaison department also provided civic education on the process and on constitutional issues through the use of posters, brochures, leaflets, a biweekly constitutional newsletter called “Constitutional Talk” (160,000 copies were distributed each week), booklets such as “You and Building the New Constitution,” comic books, and an official website (developed with the University of Capetown). A weekly TV program, Constitutional Talk, promoted debates on constitutional issues such as the death penalty. An hour-long radio talk show was organized in eight languages and reached upwards of ten million South Africans each week. Ten thousand people also made use of a telephone “Constitutional Talk Line” to call in and leave submissions or receive information. The talk line was available in five languages. (See, generally, Skjelton 2006.)

Although this was not initially planned for, the community liaison department established a constitutional education program, which linked with hundreds of civil society organizations. The 486 face-to-face workshops targeted the country’s disadvantaged communities. Civic educators were hired and trained, and a manual was created to ensure that the messages and the methodology were consistent. The three- hour workshops used participatory methods such as role-playing. The objectives were to educate disadvantaged citizens about the process, South Africa’s constitutional history, and human rights, and also to encourage participants to provide input. The workshops did not educate people about specific constitutional issues or options or the draft constitution. Most of the workshops were held after the constitutional public meetings were conducted.

The meetings were held with multiparty panels of constituent assembly members in attendance and were conducted in all nine provinces. These were used both to educate (citizens asked questions of members and learned about the process) and to gather views on constitutional issues before the draft constitution was prepared. The public saw for the first time previously warring factions sitting peacefully together discussing constitutional issues. The process was also precedent-setting in that black South Africans were included in politics as they had never been before.

Four and a half million copies of the draft constitution (in a simplified format) and twelve million copies of the final constitution were sent through the mail for free, as well as being distributed in taxis, newspapers, and schools. Copies of the final constitution in particular were sent to the members of the official security forces. Braille versions and recordings of the final constitution were also made, as were comic-book versions of the bill of rights. Teaching aids on the final constitution were distributed to schools. These materials were distributed during “National Constitution Week,” which was created to promote constitutionalism and ownership of South Africa’s new constitution. To carry out these postadoption tasks, the community liaison department remained in operation for a few months after the constituent assembly concluded its work.

An external evaluation determined that three-quarters of the South African people— about thirty million—had heard about the process, and nearly twenty million knew that they could make a submission on constitutional issues. It is unclear what these numbers mean in terms of preparing citizens to make decisions on constitutional options—a stated goal of the civic education program. Nonetheless, the depth and creativity of South Africa’s participatory process has inspired numerous other constitution-makers to commit to preparing the public to participate.

  • After the preparation of a draft constitution, when the goal of civic education may be to inform the people about the contents of the draft (and if public consultation beforehand was conducted to inform them about how their views were taken into consideration in the draft) and to prepare the public to provide input on the draft.
  • Before any referendum on constitutional reform, when the goal of civic education would be to inform people about both the referendum process and the content of the proposed new constitution.
  • After the adoption of the constitution, when the goal of civic education would include informing the people about:
    • the contents of the constitution (a discussion directed to all audiences, including schoolchildren);
    • how key provisions of interest to particular groups or communities affect their lives and how specific rights can be accessed or enjoyed through the constitution;
    • civic responsibilities under the constitution; and
    • what responsibilities key government actors and others have to implement the constitution (for example, educating the judiciary about any new duties or institutional changes that will occur as a result of the constitution).

To provide readers with an idea of how these educational objectives are carried out at different stages, we outline in box 12 South Africa’s efforts to prepare the public to participate.

Who conducts civic education programs?

Constitution-making bodies are sometimes mandated to undertake civic education. But even when they are not officially given such a role, some such bodies may still take on the role, usually as a result of a commitment to ensuring that the process is “people-driven.” (South Africa provides an example of such a situation.)

The tasks required to prepare the people to participate can seem daunting. However, constitution- makers rarely undertake this task on their own. If they are required to do it, some form of an administrative management body (see part 3.3) or governmental department will assist. In addition, media and civil society (including women’s groups, human rights organizations, trade unions, religious organizations, and minority groups) often play significant roles.

In some processes, a national curriculum is created; civil society and local leaders agree to follow the national program and are trained to use it. Sufficient time must be allocated to train educators to effectively deliver the program, particularly in the use of participatory methodologies. To clearly define responsibilities and relationships, the constitution-makers may enter into memoranda of understanding with civic education providers, who may also be required to sign a code of conduct. (See appendix C.2.) Mechanisms are also sometimes established to monitor whether a civic education program is being implemented effectively and as agreed.

A constitution-making body that develops good working relationships with civil society and the media in presenting an effective and helpful civic education program will often establish a precedent for open and democratic participation in governance in the future. It may lead the constitution-making body and the process itself to be viewed as more credible, accessible, and transparent.

Civil society may sometimes take its own initiative in relation to civic education. Ideally there will be some coordination with the official process. However, at times, the constitution-making body may be conducting a “top-down” approach and have little interest in engaging the public. Civil society may then act on its own to promote a participatory process. (See part 4.1.)

Planning civic education

Part 2.3.2 discusses preparation of strategic and operational plans for constitution-making processes, plans that should normally include arrangements for civic education programs, and box 23 provides specific ideas about how to plan such programs. If resources are limited, the constitution-making body may be able to tap into existing channels for civic education. Examples may include community organizations, academic institutions, schools, churches, popular TV, blogs, websites or radio programs, as well as government programs.

Practical planning tips

  • Ensure that there is sufficient time to plan. In South Africa (see box 12) the planners took four months to plan for civic education and public consultation efforts.
  • Some initial research may be needed to determine the level of civic knowledge about democratic practices and constitutions as well as attitudes, beliefs, etc. A plan should consider what level of civic and constitutional knowledge is necessary to participate effectively or what should be prioritized.
  • In a highly participatory process, the constitution-making body should aim to ensure that accurate information and effective civic or educational messages reach a wide and inclusive audience—in particular, groups in the society that have historically been marginalized (see box 9 to ensure program is inclusive).
  • Most constitution-making bodies do not have unlimited time and resources and as a result they need to determine what is feasible and cost-effective. For example, it may be appealing to develop a sophisticated website, but if only a small percentage of the public uses the Internet, resources may be better spent elsewhere.
  • Evaluations of the impact of civic education efforts should be conducted to measure whether they are achieving the intended results. Some constitution-makers have hired experts in civic education or advertising to conduct research as well as develop and test methods.

Methods of civic education

Most civic education programs use a combination of methods to reach different groups and communities. The experience of South Africa (described in box 12 above) provides a useful example. In contexts where there is an independent media, it is common to rely heavily on the media. (See part 2.3.11 for a discussion about linking with the media.) This may involve either linking with reliable newspapers or radio and television stations, or the constitution-making body developing the capacity needed to produce its own media programs, including using social media tools.

Research may be needed to determine which medium or method is most effective in reaching which groups best, and at what times, to convey information in a manner that is most trusted and credible. International NGOs may often fund such studies. Conveying information and educational messages effectively to a particular audience is highly context- and culture-specific. What has worked in one place may fail in another. It is usually necessary to take into account differences between audiences in the same country (for example, women, illiterate citizens, and minorities). This section provides examples of various approaches to civic education that have been used at different stages of constitution-making processes.

Television and radio

Research in sixty districts of Nepal showed that 90 percent of the people listened to the radio for up to two hours a day and that this was the most trusted source of information. In most developing countries, radio tends to have the widest reach. In many countries FM technology has made it possible to have a variety of radio stations catering to the needs of most linguistic groups. In countries without good supplies of electricity, battery-operated radios can be used. Where batteries have been too expensive, donors have sometimes distributed wind-up or solar- powered radios (e.g., in the Democratic Republic of the Congo, Liberia, and Malawi).

Radio and television offer a variety of creative possibilities to convey information and to educate. Dramas, including single performances of plays and long-running serials, and discussion programs, interviews, and even traditional storytelling and songs can all be used to convey information or educational messages. In Afghanistan and Nepal, material about constitutional issues was integrated into existing popular radio soap opera programs.

Call-in shows and debates can serve as a way for people to ask questions, and can spur debate and dialogue on constitutional issues. Television, radio, and the constitution-making body’s official website can broadcast live sessions of a constituent assembly. In Nauru, radio was used to broadcast the constitution-making committee’s debates on every single clause of the draft constitution. A surprising number of people followed those proceedings closely, and the public found it interesting to see the complexities of the debate. Broadcasts of concerts and sporting events have been organized around the constitutional process. Repeating programs at different times of the day may enable them to reach different groups (i.e., women may listen or watch at different times than men), or may allow people to hear information more than once.

Brazil’s constitution-making body is one that supplemented the use of existing mass- communication media with the production of in-house media. Its own media center produced 716 television programs and 700 radio programs that were distributed to multiple stations, with segments aired daily (Rosenn 2010: 445).

Print materials

In the small South Pacific island country of Nauru, half of which did not receive a radio or television signal, three large billboards were placed in highly visible areas. One read: “The Constitution is for the people. The review will help us learn more about the Constitution and be more active citizens of Nauru,” and another stated, “The Constitution belongs to the people of Nauru. The review is our chance to make the Constitution more truly Nauruan. Your views and opinions will be needed in step 2—public consultation.” The third listed the six steps in the review process (Le Roy 2010).

Newspapers, magazines, and popular Internet sites can be paid or encouraged to include:

  • copies of the draft constitution, the final constitution, or any other important document;
  • requests for submissions of constitutional options and directions on where to send them;
  • information about important constitution-making process events and activities or deadlines;
  • regular columns that answer readers’ questions about the constitutional process or constitutional issues; and
  • stories or comic books about the process.

In-house efforts can supplement the effort as well. Newsletters, brochures, posters, leaflets, and booklets can all be developed, ranging from in-depth discussions of complex issues to comic books about the process or the constitution. In Afghanistan and other countries, biweekly or monthly magazines have been distributed to more than a hundred thousand readers. Disseminating such publications can be assisted by use of websites, Facebook, Twitter, etc. Some countries have used the regional or district field offices of their constitution-making bodies to assist with disseminating materials to remote areas. New technologies, such as digital books, could also be distributed to every community with key civic education materials loaded onto them.

To prepare the people to provide their views, Uganda circulated the existing constitution along with a booklet titled “Guiding Questions on Constitutional Issues” and one explaining how to prepare memoranda containing submissions on constitutional issues. In various countries, after a draft constitution has been produced, or after the eventual adoption of a new constitution, constitution-making bodies have developed booklets explaining the constitutional document and why certain choices were made. In some cases comic books have also been developed for people with low literacy levels.

Box 13. Examples of official websites of constitution-making bodies

Bolivian Constituent Assembly (in Spanish): http://www.laconstituyente.org/

Ecuador Constituent Assembly (in Spanish): http://constituyente.asambleanacional.gob.ec/

Ghana Constitution Review Commission: http://www.crc.gov.gh/

Kenya: Committee of Experts: http://www.coekenya.go.ke/

Malawi Law Commission—Constitutional Review: http://www.lawcom.mw/index.php/constitutionreview

Nepal Constituent Assembly (in Nepali and English): http://www.can.gov.np/en

Somalia Independent Federal Constitution Commission (Somali and English): http://www.dastuur.org/eng/

Zambia: National Constitutional Conference: http://www.ncczambia.org/index.php

In Ecuador, a constitutional glossary was created to familiarize the public with terms related to the upcoming constitutional referendum. In Kenya, a snakes-and-ladders-like game was created in order to teach people about human rights (though this was in fact produced prior to the constitution-making process). Such materials can bolster face-to-face civic education efforts. For example, in Nepal a large poster was designed to illustrate the journey involved in the constitution-making process; it was used to start discussions about the process.

Cultural and sporting events, games, and competitions

In Fiji, art competitions on the theme of the new constitution were held. Other countries have held poetry, song, and essay competitions to encourage public engagement in the process. These competitions have been for both adults and students. Sports events can also be an effective way to introduce youth to the constitution-making process.

Official website of the constitution-making body

Many recent constitution-making processes have benefited from establishing an official website. The constitution-making body can thereby communicate and consult directly with the public. This is especially useful if the media are biased or inexperienced and untrained and cannot be relied upon to report information accurately; the Internet gives the public another way to receive information.

The public can also be encouraged to send questions, comments, and suggestions directly to the website or though links to social media tools. However, the constitution-making body must have the resources to respond and manage the flow of information effectively. If five thousand questions are asked, ideally each should receive a response. A section on the website of frequently asked questions can help with basic questions.

An official website can be a valuable resource for the general public, journalists, members of civil society, advisers to the process, government actors, international actors, and especially members of the diaspora. The constitution-making body’s willingness to post its budget, drafts of the constitution, and other key documents can vastly improve the transparency and openness of the process and add to its overall credibility. The following list of potential components for an official website draws upon the experience of a number of processes:

  • Introductory page
    • An overview of the role and structure of the constitution-making body
    • An overview of why the constitution-making process is taking place
  • Information about how the public can participate in or learn more about the process
    • A schedule for the constitution-making process (including the main steps involved and an estimated timetable)
    • Information about constitutions, constitution-making, and constitutional issues
    • Upcoming events, activities, or public sessions
    • The times and purposes of events or activities
  • Biographical data on leaders and members of the constitution-making body
    • Including information not only about their backgrounds, but also about how they were selected or elected and their functions and powers
  • List of committees or other working groups of the constitution-making body
    • Description of the mandate and names of members of the committees
    • Information on upcoming meetings and agendas
    • Working drafts or final reports from relevant committees
  • Copies of key documents related to the process
    • Copies of the current and any past constitution of the country in question and all relevant legislation or other legal instruments relevant to the establishment of the constitution-making process
    • All relevant educational material
    • Public surveys, questionnaires, and calls for submissions
    • Press releases and any reports from the constitution-making body
    • Rules of procedure, budgets, working drafts of the proposed constitution, the final constitution, and any report of the constitution-making body
    • Codes of conduct for constitution-makers or other relevant actors
  • Online video or audio recordings
    • Proceedings, sessions, public consultation meetings, and other events in real time
  • Questions and answers
    • Can provide list of frequently asked questions about the process
    • Mechanism for members of the public to get answers to questions about either the process or constitutional issues
  • Getting public views
    • A platform for the public to submit its views about the constitution (see part 2.2.3 on public consultation)
  • External hyperlinks (including to social media tools) and search tools

Mobile messaging services and social media

The constitution-making body can use mobile messaging services or social media such as Facebook and Twitter to send out critical pieces of information, such as the results of a vote on a key provision of the constitution, the opening of the polls for a referendum, or the final adoption of the constitution. Texting and social media can also be an effective way to communicate with youth. South Africa set up a phone line for the public to use to ask questions or give suggestions. (See box 22 for an example of how Iceland is using social media to prepare its constitution.)

Civic education workshops

Face-to-face workshops are a common method for delivery of civic education programs. Usually they will be planned to supplement messages (about the constitution-making process and how people can participate) being delivered through other channels (e.g., television, radio, and print media). However, face-to-face workshops often play important roles in such programs. They provide publicity for the constitution-making process, and they can bring constitution-makers in direct contact with the people, enabling the constitution-makers to gauge for themselves such things as the extent to which “the people,” or particular social groups, understand constitutional issues.

Most importantly, face-to-face workshops may often be the only effective way to reach disadvantaged or hard to reach groups who do not have much access to media, are illiterate, or do not speak the dominant language. It will often be important to make special efforts to reach such groups. By way of example of the difficulties sometimes involved, a woman villager in Zimbabwe recently reported that people may “tune out” information and educational messages about the process because they feel such information does not concern them or that it is for lawyers.

There is no particular correct method for conducting such workshops. Relevant experience distilled from largely practitioner experience and advice is included in the discussion under the next heading in this part (“Practical tips for conducting civic education programs”). Some of the points made about organizing face-to-face meetings as part of public consultation apply here as well. (See in particular part 2.2.3, under the heading “Practical tips for organizing all types of face-to-face meetings.”)

There has been much debate in the democratization field about the efficacy of civic education workshops. A key question is whether participation in them does result in improved democratic knowledge, beliefs, and behavior. Studies suggest that it can—but only if the workshops are carefully planned, have sufficient resources and time, use participatory methodologies that link the subject matter to the real lives of the participants, and offer follow-up sessions (e.g., Finkel 2003). Designers of civic education in constitution-making processes need to consider carefully how these lessons can improve their plans and strategies. It may mean that more consideration is given to reaching marginalized groups on an ongoing basis than to holding isolated workshops for vast numbers of participants. Each program will have to assess what is realistic.

As noted above, in a participatory constitution-making process, a key goal of civic education will normally be to help to prepare people to give their views—both about the process of constitution-making and on constitutional issues. If face-to-face workshops are to be held as part of civic education programs in such a process, it will be necessary to plan for and structure the workshops with these goals in mind. Where civic education programs are developed in a rush, sometimes such goals are neglected. For example, one of the goals of South Africa’s civic education workshops was to prepare disadvantaged groups to make submissions or share views during the public consultation phase. (See box 12.) Yet the individual workshops did not cover constitutional concepts, nor were follow-up workshops held to help workshop participants provide input to the constitution-makers. The workshops were also held after the first draft was prepared. Ideally, time would have been allocated to this task prior to preparation of the draft (as has been done in Kenya, Nauru, Papua New Guinea, Thailand, and Uganda).

Those planning and implementing civic education programs are often up against tight deadlines. This may be because of poor planning, or a lack of understanding of the complex nature of this task, or because once a civic education process gets under way, there are demands from the public for a more extensive program. There can also be pressures from those in control of the constitution-making process to complete civic education as quickly as possible so as not to

delay the overall process. As a result of these and similar pressures, it may be difficult to conduct even basic research on the levels of civic knowledge and common beliefs and attitudes. Further, when a program is under way, there is often little or no attempt to test out the approach and or to evaluate the impact of the workshops. Instead, success is often measured by the number of workshops and participants rather than by knowledge gained or transformation in democratic practice, beliefs or attitudes.

It is vital to the success of civic education generally, and in particular face-to-face workshops, that the material presented should be accessible to the audience. Sometimes the approach taken in the design and presentation of formal workshops reduces the chance of success. For example, in Nepal [ongoing process], lawyers prepared dense educational materials and civic educators lectured from these materials on topics such as the difference between a parliamentary system and a presidential system. However, many of the educators did not understand what a constitution was or how it worked. This is not uncommon and probably does not prepare the public to any significant degree to participate in a way that is meaningful and has an impact.

Civic education workshops have sometimes been conducted largely “for show.” The trend toward more participatory constitution-making processes has resulted in some authorities feeling pressure to have the process at least appear participatory or “people driven.” Such pressures can include external demands (e.g., from the media, civil society, international actors, etc.) for public participation, including workshops directed toward encouraging such participation. In Timor-Leste [2002], civil society demanded a participatory process. The official civic education workshops and initial public consultation meetings were conducted on the same day. Participants had no time to reflect on the civic education to provide thoughtful views and suggestions on the constitution.

Civil society members protested to the United Nations Security Council that citizens were not being given the opportunity to participate meaningfully and reflect on the constitutional decisions before them. While there have been few empirical evaluations of civic education in constitution-making processes, we can assume that few positive results are gained from programs that do not adequately prepare the people to participate and they could even discredit or weaken the process.

Practical tips for conducting civic education programs

Some practical tips about implementing civic education programs can be drawn from lessons learned through the experiences of dozens of practitioners in both the democratization field and constitution-making processes. While many of these tips involve a particular focus on civic education workshops, others extend to issues about civic education programs more generally.

Plan carefully and dedicate sufficient resources. A nationwide civic education program will require time to conduct some basic research, plan, train staff, test approaches, and implement. Strong planning and management skills are required to coordinate dozens or hundreds of civic education partners (usually NGOs, local leaders, or government departments or bodies), as well as for preparation of media campaigns, workshops, public meetings, activities such as sporting events and song contests, printed materials, radio and TV programs, websites, links to social media tools, and so on. civil society or other partners are usually needed. Ideally they should be selected on the basis of such criteria as established reputations, experience in design or conduct of civic education programs, or use of participatory methodologies. So a constitution-making body may require considerable expertise (perhaps through use of short- term consultants) even in its selection of partners.

Identify groups and communities that have been historically disadvantaged and may require special attention to ensure their participation. (See box 9) This may require translation of printed materials, radio and TV programs, and workshop presentations into minority languages. When delivering face-to-face workshops, it may require providing childcare, holding workshops at night or early in the morning when women or farmers in a particular area are available, or providing food or accommodations if groups are nomadic or populations are spread out. There may be a need to train members of particular groups or communities to be resource persons on constitutional issues and to have them serve as liaisons with the constitution-making body.

Use a participatory methodology in face-to-face workshops. There should be a focus on the use of role-playing, mock political debates or discussions, small-group activities, and the like to achieve the learning objectives of the program. Examples include holding mock constituent assembly sessions or debates with women or students. In Nepal, representatives of marginalized groups were brought together to discuss constitutional issues in much the same way as the constituent assembly might do. Street-theater performances and short plays can also be effective ways to educate people about rights.

Train workshop facilitators. Facilitators should receive training in the participatory methodologies and also in basic constitutional knowledge. Depending on the objectives and skill levels of the civic educators, training may require a few weeks.

Start workshop discussions with issues that concern participants. Participants may be especially concerned with issues such as land rights, health services, or political rights. The facilitator should design participatory exercises to help explain how a constitution or democracy relates to those concerns and how the group can get involved in the constitutional and democratic process to better address those specific concerns.

Hold at least three workshops or sessions with each group or community. Studies show that holding fewer than three workshops for any particular group has little impact on levels of knowledge of such things as democratic principles, values, or practices (Finkel 2003).

Develop realistic learning objectives and test approaches in advance. Some core constitutional concepts can be explained, but this may require a combination of civic education methods (e.g., printed materials of various kinds, TV and radio programs, cultural events, and workshops). Where face-to-face workshops are used, if multiple workshops can be held for particular groups, there should be careful testing to determine if the approach is in fact working. If evaluations indicate that certain audiences still lack the knowledge and tools to make choices among constitutional options—often a key objective—then either objectives or methodology may need to be revised. Raising awareness about how a constitution relates to the lives of the participants and clarifying some basic democratic values may end up being more realistic objectives where a remote population has such limited levels of formal education as to make it difficult for choices to be made on constitutional issues.

Stress neutrality and develop a code of conduct that describes what this entails. The designers and facilitators of all aspects of civic education must understand that they cannot use the process to promote a particular form of government or any other personal agenda in relation to the process or constitutional issues. The process should be monitored to ensure that those implementing an official civic education program of the constitution-making body are doing it in an ethical manner and according to a code of conduct.

Do not mislead people about what democracy or a new constitution can change in participants’ lives. When any part of a civic education program (printed materials, radio or TV programs, websites, or facilitators of workshops) is encouraging the public to provide input for the process, the material presented should be accurate about how views may or may not be used and what a constitution can and cannot do.

Give the official process a logo. An official logo will identify the civic education materials and activities as those conducted or approved by the constitution-making body. The logo should be advertised as widely as possible to ensure that citizens can distinguish the official civic education program from those conducted by unofficial actors who may not have accurate information or who may even intend to misinform the public.

Monitor and evaluate. Evaluation both of civic education activities and of their overall results is important. This is especially true when a program is operating over an extended period, for monitoring and evaluation can then enable the constitution-making body to adapt and improve the program whenever problems are revealed. There may be advantages in monitoring and evaluation being conducted by an outside group that may be more objective.

Some challenges of implementing civic education programs

Most civic education programs are conducted with good intentions. The problem lies in their implementation, including unrealistic objectives given time and resource constraints and sometimes a lack of awareness about what the task entails. As a result, it is helpful to highlight some of the main implementation challenges experienced in other processes.

Civic education is rarely neutral. civic education programs are often funded by foreign donors and use foreign-developed materials that promote a particular type of system, such as federalism. In several countries, foreign actors have tried to “sell” their system of governance as the best form. Such efforts often ignore specific cultural contexts and the social mores of the country where the constitution-making process occurs, and may limit the extent of local analysis of the problems as well as consideration of locally derived solutions. Similarly, civic educators have signed codes of conduct that obligate them to deliver the official curriculum in a neutral way (e.g., in South Africa [1996] and in Kenya [2005]). Yet civil society members, political parties, government agencies, and even the constitution-makers themselves have used civic education to promote their own agendas.

While it will often be necessary for constitution-makers to partner with civil society in the development and presentation of civic education programs, it must also be noted that NGOs are often established mainly to access donor funds, which can include funds for civic education. Donors may issue calls for proposals in English and only in urban areas; this often excludes rural organizations which may be more closely linked with marginalized groups and even some longstanding organizations with poor English or proposal writing skills. Donors should make efforts to map the civil society organizations that are experienced and help those that need it to prepare proposals. Some funds for organizational development may be needed.

Some organizations may be more interested in the money than in achieving the goals of the civic education program. Because of pressure on donors to spend money allocated to support a constitution-making process, donors may not monitor the effectiveness of NGO civic education programs or even whether they were held. (Afghanistan [2004] is one example.)

Few civic education programs have had the time, resources, and commitment to reach disadvantaged groups effectively. Just to make contact with certain groups may pose significant challenges. In Eritrea [1997], the constitution-making body struggled to communicate with nomads. It went to great lengths to organize meetings and provided food and water for weeks so that the nomads could stay in one place and talk with constitution-makers in their own language.

Because the resources necessary to reach marginalized groups and minorities, especially in poor countries, are seldom available, even a “neutral” civic education campaign may contribute to increased inequalities in a society by further empowering those who already have access to some level of social networks or resources. The most disadvantaged and isolated citizens will rarely have time to participate or to translate civic education into political, economic, or social gains without sustained engagement and targeted resources.

Box 14. Evaluations of civic education workshops: Some observations

It is common to pass around evaluation forms at the end of civic education workshops. They tend to ask questions such as:

  • Were the objectives clear and were they achieved?
  • Did you understand the presentations?
  • Did you have adequate opportunity to ask questions and/or contribute to discussions?
  • Would you come again to a workshop organized by this organization?

There are problems with evaluations of this sort. The questionnaire is completed at the end of the workshop, when everyone is anxious to leave and get home; many people will answer positively because they have enjoyed the event, but this gives the organizers absolutely no idea whether it has achieved its objectives.

An event that is designed to affect attitudes can be measured by questioning people at the beginning and again at the end, using questions designed to reveal attitudes, though not simply by asking “How has your attitude changed?” If an objective is to encourage people to respond to the opportunity to have input into a constitution-making process, this can be measured. Tests of recognition should be carried out ideally before the event and again after some time has passed: for example, it is hoped that more people will have heard of the constitution or the concept of federalism than had before the event.

Testing for knowledge is much more difficult. Asking whether people feel they have a better understanding elicits an attitude and not a measure of knowledge. People who already have some knowledge may be able to judge whether they now have more. It is far harder in the case of those who know nothing about the issue at the beginning. Members of the public do not expect to be given an examination as the price of attending a workshop. And unless the evaluator was present and knowledgeable, it may be impossible to know whether what was learned was accurate.

There are many creative means for evaluating results. For example, more or different things may be learned about participants’ reactions by having a space where people can write their reactions (e.g., a wall papered with plain paper with pens provided; a pile of shapes on which people can write, which are then hung on a “comment tree”).

Finally, we emphasize that such challenges are discussed not with a view to discouraging constitution-makers from carrying out this task, but rather to stress that ambitious civic education objectives can be hard to achieve. This task in particular requires careful consideration of what are realistic objectives and how to achieve them with the time and resources available. (See part 2.3.2 on strategic planning.) Constitution-makers may not have the time or skill to do this, and as a result they may need to set up arrangements under which they only oversee this task rather than implement it themselves, provided of course that the task is allocated to competent partners, and that their performance is subject to ongoing critical monitoring and evaluation.


2.2.3 Public consultation

For our readers interested in designing a participatory constitution-making process, the decision will usually not be whether to hold public consultation but, rather, how best to do so. While there are contexts where public consultation does not occur, or does so to a limited extent, there is no doubt that public consultation has increasingly become a feature of modern constitution- making. It is held on issues related to how the process is conducted and even on whether a process should take place, as well as about the content of the constitution.

In a divided society, the constitution can be much more than a set of rules for the structure of government. The constitution-making process is a unique moment—an opportunity to build consensus, a shared sense of identity, values, and purpose, and to resolve major differences. To have any realistic hope of achieving such outcomes, constitution-makers must be committed to a credible and transparent process where the concerns of the people are central and where the people know that choices on constitutional issues take account of their views. Such a process involves the constitution-makers actively listening to, accurately capturing and analyzing, and seriously considering the views of the people. It also includes providing feedback about how decisions were made and (in particular) how views from the people were considered.

In the following discussion we first outline the types of issues about constitution-making processes and the contents of the constitution about which public consultation often occurs, the legal basis for public consultation, and people’s views as one source among many for making decisions during a constitution-making process. We then identify the bodies that typically conduct public consultation, key reasons for doing so, and some guiding principles for conducting a public consultation process. We also discuss the various methods that can be used to consult, and how constitution-making bodies analyze and report on the views gathered.

In doing so we seek to assist those wishing to engage in public consultation by considering a number of key questions, such as:

  • What will be the goals and objectives of the public consultation?
  • Which body will conduct the public consultation?
  • What should be consulted about, at what stage of the process, and why?
  • What are the potential risks (e.g. security of public sharing views) and benefits of public consultation (e.g., increased ownership of the process and constitution)?
  • Who should be consulted (see box 9)?
  • What kind of information is needed or desired (e.g., all of the views of the public, views on specific issues or a draft proposal, the views of particular groups on specific topics (perhaps groups that have been historically marginalized and may not be adequately represented in the official body) what are divisive issues in society, or whether the views of elites agree withthose of the public)?
  • What methods will obtain the information needed or achieve the result desired?
  • What are the guiding principles that will facilitate meaningful public participation in the process?
  • How will views be gathered, received, analyzed, and used?
  • How will feedback be provided to those consulted about what the constitution-makers learned and how the views were considered, and if so when will this be done?
  • What resources will be needed, and are they available, or should a more limited process of public consultation be conducted?

Public consultation on both the constitution-making process and the contents of the constitution

It is sometimes assumed that public consultation in a constitution-making process relates only to issues about choices of the contents of a new constitution. While in most cases the main allocation of effort toward public consultation does relate to such issues, there can also be significant efforts made in relation to issues of process—so much so that it is helpful to discuss public consultation on process separately from that on contents of the constitution.

Public consultation on issues about the constitution-making process

Public consultation on process issues most often occurs before a constitution-making process begins, but can also be held at various points during a process (as discussed below). Involving the people in discussions and decision-making about the process, including how it is to be structured, can be especially important in a divided society. In such cases, not only can perceptions that such an important process involving decisions about the future of the state might be structured to benefit particular groups (especially those in power) be divisive, but they can destroy the credibility of a process and any constitution resulting from it. More generally, public consultation in advance of a process can help decision-makers determine whether a process is needed or wanted and how it should be carried out, and can be used to encourage key stakeholders or political actors to commit themselves to the process. Public consultation on process may well be demanded by dissident groups or by civil society (e.g., in Colombia—see box 1).

Public consultation on process issues can help prevent a backlash against an unpopular procedure or approach. In Timor-Leste, the United Nations Transitional Administration did not consult with civil society about its plans for civic education, and it boycotted the official civic education program. Because civil society actors were key partners for implementing the program, the United Nations had to delay the program until an agreement could be reached with civil society about how to move forward.

There are several main categories of constitution-making process issues about which public consultation most often occurs, and varying ways in which such public consultation may be conducted, ranging from a referendum to meetings with civil society:

Whether there should be a constitution-making process. The public consultation may first be about whether constitutional reform is needed and if so whether a new constitution-making process should be established. Public consultation on such issues is sometimes conducted through a referendum (e.g., as in Colombia, Spain, and Venezuela). In Colombia, an election in 1990 was used also to hold a referendum about whether to form a constituent assembly to develop a new constitution. The public voted overwhelmingly to establish the body. (See box 1.) Such a decision may also be made through negotiations with key stakeholders or some form of general consultation with the public.

How the process should be structured. It is not unusual to engage in public consultation in advance of a process about how the process should be structured, inclusive of such things as what types of institution should be used, selection or election of members of such institutions, mechanisms for public participation, the timetable for the process, and so on. In some cases it will be necessary for warring factions to agree that a constitution-making process is required; indeed, such agreement is often an issue dealt with as part of a peace process and a “comprehensive” peace agreement. Issues about constitutional arrangements (perhaps involving exclusion of significant minority groups from power) may have been a factor in the original conflict, in which case it can be vital to the prospects of a peace agreement not just that there is acceptance that the constitution will change, but also that those previously excluded will have a role in the process that determines the changes. There can, of course, also be public consultation about constitution-making processes in many other circumstances as well, and such public consultation can take many forms. In Afghanistan [2004], women’s groups were consulted about how their representatives should be selected. Sometimes such public consultation has been limited to elite stakeholders. In Timor-Leste [2002], the transitional legislature invited key stakeholders to hearings about how to make the constitution.

How to conduct next steps in an already established process. The people are sometimes consulted about the process even after it has started, in particular when questions arise about the next step in either a continuing process or one that has stalled. Public consultation on next steps can extend to questions on whether there should be changes in previously agreed steps in the process; Uganda [1995] is one example. As discussed in more detail in the case study on Uganda in appendix A.12, consultation with the people by the Uganda Constitutional Commission resulted in a recommendation to the government to remove responsibility from the legislature for the debate and adoption of the draft constitution prepared by the commission, and instead a constituent assembly was established to undertake those tasks.

How to conduct civic education or public consultation. In South Africa, the community liaison department engaged in public consultation with civil society and community leaders about how to conduct legitimate and credible public consultations. Public views on this can also be gathered through a website, social media tools, or other cost-effective methods. To reach marginalized groups, public consultations can be held with them directly.

Public consultation on issues about the contents of the constitution

The most intensive and time-consuming public consultation is commonly that held on the substantive issues of constitutional reform—those about the contents of the proposed new constitution. Although the following list of situations where public consultation on constitutional issues has been held is not exhaustive, we can say that such public consultation most often occurs at the following stages of constitution-making processes for the following purposes:

Before a process begins, or in its early stages, when the purpose of public consultation is to determine or assist in developing the agenda of issues to be considered as part of the constitutional reform agenda. Public consultation at this early stage is often seen as likely to cause unnecessary delays in the process, and so does not occur in many cases. One example is Uganda [1995], where an initial round of public consultation to identify the agenda involved conducting about 140 seminars attended by almost a hundred thousand people. Subsequently, public consultation about the views of the people on substantive reform issues was conducted largely by reference to the agenda of issues identified in the initial rounds of public consultation. (Determining the agenda of issues is discussed in more detail in part 2.4.1.)

Before a draft constitution is prepared, to receive views about issues of concern, the options for constitutional reform, or both. Increasingly, public opinion is sought before a draft is prepared. (See table 5.) This is commonly the main consultative stage of a process, and may sometimes cover an extended period. Among the main reasons for consultation at this stage, two require particular mention. First, as few processes have the early special phase of public consultation on the reform agenda that occurred in Uganda, the constitution-makers are able to ensure that their agenda for reform takes account of the needs and aspirations expressed by the people. Second, the receipt of views from the people is usually intended by constitution- makers to assist them in making decisions on what (if anything) the new constitution will provide in relation to the main issues.

After either a detailed proposal for a draft constitution or an actual draft has been prepared, and before any draft is finally debated and adopted, to receive views on the proposal or draft of the constitution. Public consultation at this stage is not so common as it is in advance of a draft being prepared. One reason for this is the significant organizational and resource issues that can be involved. Copies of the draft will need to be printed and distributed widely, or at least adequate explanatory materials (providing enough information for meaningful public consultation) will need to be produced. All such materials may need to be translated into local languages. In South Africa [1996], 4.5 million copies of the draft were distributed in eleven languages. In Bougainville [2004] there was public consultation on two main drafts that were quite widely circulated.

Before constitution-makers reach decisions on potentially divisive issues, to help them both identify and make decisions on such issues. Constitution-making processes often have difficulties in dealing with divisive issues. (See part 2.5.2.) The people’s views are quite often used to identify and resolve divisive or contentious issues, but are seldom highlighted as the key source. Uganda is an unusual case in that statistical analyses of views submitted were identified by the constitutional commission as one of the main sources it used to reach a decision on the divisive issues.

Constitution-makers may choose to consult at some or all of the points and for the purposes noted, but we are not aware of any recent process where there has been public consultation on all of them. (See table 5.) Many different methods are used in undertaking such public consultation, as discussed later in this part.

There is debate about whether the views of the people should be obtained before preparing a draft constitution, after a draft is ready, or at both times. In some countries public views are sought only about the provisions of a draft constitution. If the set of constitutional issues being dealt with is narrow this can quickly focus the public consultation on specific proposals. The potential dilemma is that other issues about which members of the public have concerns may be excluded from debates. There may be frustration on the part of groups that feel that the draft does not reflect their concerns or that the issues have been decided prematurely. The constitution-makers may also be less inclined to change a draft that took time to negotiate and prepare. Ideally, the people’s views should be obtained both in advance of a draft being prepared (to assist in its development) and after it has been completed (to test whether it meets the people’s concerns).

Table 5 illustrates the use of public consultation on the contents of the constitution in twenty constitution-making processes. The table illustrates that public views are often sought before a draft is prepared, and again afterward. Holding public consultation prior to the drafting of the constitution often broadens the issues that will be considered because the people share views and aspirations that go beyond the initial reform agenda (which is usually developed mainly by the constitution-makers). If the concerns of the public extend to the development of the constitutional reform agenda, the possibility of the public consultation leading to a long and unwieldy text may increase. However, a process with no public consultation can lead to the same result (e.g., Venezuela [1999]).

Table 5: Stages of a constitution-making process where public consultation took place on the content of the constitution

Constitution-making process Public consultation on agenda of issues to be considered Public consultation on the content of the constitution before drafting Deciding changes to drafts of the constitution
Papua New Guinea [1975] n
Peru [1979] n
Nicaragua [1987] n n
Brazil [1988] n
Benin [1990] n
Colombia [1991] n
Ghana [1992] n
Tanzania [1992] n
Uganda [1995] n n
South Africa [1996] n n
Eritrea [1997] n n
Fiji [1997] n
Albania [1998] n n
Rwanda [2003] n
Bougainville [2004] n n In a succession
Kenya [2005] n n
Thailand [2007] n n n
Bolivia [2009] n
Kenya [2010] n n
Nepal [ongoing process] n n

Box 15. Examples of legal mandates to conduct public consultations

In Afghanistan, a presidential decree mandated the constitutional commission to:

  • facilitate and promote public information on the constitution-making process during the entire period of its work;
  • conduct public consultations in each province of Afghanistan, and among Afghan refugees in Iran and Pakistan and, where possible, other countries, to solicit the views of Afghans regarding their national aspirations;
  • receive written submissions from individuals and groups of Afghans within and outside the country wishing to contribute to the constitutional process;
  • conduct or commission studies concerning options for the draft constitution;
  • prepare a report analyzing the views of Afghans gathered during public consultations and make the report available to the public; and
  • disseminate, and educate the public about, the draft constitution.

The Constitution of Kenya Review Act (2001) mandated that, within two years, the Constitution of Kenya Review Commission would:

  • conduct and facilitate civic education in order to stimulate public discussion and awareness on constitutional issues;
  • collect and collate the views of the people of Kenya on proposals to alter the constitution and on the basis thereof, to draft a bill to alter the constitution for presentation to the national assembly (parliament); and
  • carry out or cause to be carried out such studies, researches and evaluations concerning the constitution and other constitutions and constitutional systems as, in the commission’s opinion, may inform the commission and the people of Kenya on the state of the constitution of Kenya.

Section 18 of the act required the commission to:

  • visit every constituency in Kenya to receive the views of the people on the constitution;
  • without let or hindrance, receive memoranda, hold public or private hearings throughout Kenya and in any other manner collect and collate the views and opinions of Kenyans, whether resident in or outside Kenya, and for that purpose the commission may summon public meetings of the inhabitants of any area for the discussion of any matter relevant to the functions of the commission.

The Uganda Constitutional Commission Statute (1988) recognized “the need to involve the people of Uganda in the determination and promulgation of a national

Constitution that will be respected and upheld by the people of Uganda” and required the constitutional commission to work toward “achieving a national consensus on the most suitable constitutional arrangements for their country,” and empowered the commission to:

  • “seek the views of the general public through the holding of public meetings and debates, seminars, workshops and any other form of collecting public views”; and
  • “stimulate public discussions and awareness of constitutional issues.”

Legally mandated public consultation, and public views as one source among others

Increasingly, legal instruments establishing or regulating constitution-making processes (e.g., an interim constitution, statute, presidential decree, parliamentary act, or rules of procedure for a constituent assembly) mandate a process of public consultation. They may go further and require the constitution-making body to take into account the public’s views when preparing the constitution and list the tasks that must be carried out, including analyzing the views and when and how to provide feedback to the public. (See box 14.)

In most such cases there has been a prior history of violent conflict in the country in question, usually conflict related to issues of constitutional significance. As a result, the constitution- making process has been seen as an opportunity to resolve such conflict. Of course, merely requiring public consultation in the terms of the legal mandate does not of itself ensure that a process will in fact result in conflict resolution, for the underlying causes of violent conflict are seldom readily resolved. Indeed, the constitution-making process itself may heighten tension and contribute to the risk of further conflict.

Stipulating a requirement for public consultation in the legal mandate may often be important in postconflict situations, as it could be expected to put pressure on constitution-makers to find constructive ways of consulting previously opposing groups. On the other hand, in some processes that have not had a detailed legal mandate or detailed plan there has been disagreement among constitution-makers about whether to conduct public consultation, to what degree, and at what stages; how to analyze and consider the public’s views, and for what purpose; and whether to report back to the public on such matters (e.g., as in Timor-Leste [2002], Nepal [ongoing process], Iraq [2005], and Ghana [ongoing process]).

Box 16. Uganda: The use of views

In Uganda [1995], while the law establishing the constitutional commission directed the commission to achieve “a national consensus” on constitutional issues, and required it to “seek the views of the general public through the holding of public meetings and debates, seminars, workshops and any other form of collecting public views,” it also required the commission “to study and review the [then existing] Constitution” in order to make proposals for a new constitution that would, among other things, “establish a free and democratic system of government that will guarantee the fundamental rights and freedoms of Ugandans.” As a result of such diverse directives, the commission stated in its final report that it used four main sources in framing its recommendations for a new constitution. They were: the people’s views; the commission’s own study of “our cultures, common history, problems and people’s aspirations”; its “mandatory review of the [then] current Constitution”; and “comparative study of constitutional arrangements of other countries.”

Even when the legal mandate of a constitution-making body requires it to use public views as a source in making decisions on constitutional issues (as in Uganda [1995], Fiji [1997], and Kenya [2005; 2010], other sources are stated or implied in the legal instrument providing the mandate. Such sources may include principles of democracy, international human rights law, and so on. While the people’s views may be important, constitution-makers, using other sources, will allocate their research and analysis efforts in other ways. That can result in developing views on constitutional issues that are different from, and even contrary to, the main thrust of views submitted by the people. The diverse sources made available by such legal mandates are almost always reflected in the reports that some constitution-making bodies make. (Such reports are discussed in part 2.2.4.) These reports generally make it clear that the views of the people are not determinative of all issues. For example, few constitution-making bodies have placed heavier reliance on people’s views than the Uganda Constitutional Commission, which made extensive use of them in resolving divisive issues. But in its final report it stated that although people’s views were its “primary and most important source,” it also used three other sources. They were the commission’s own “observations and analysis of society”; its review of Uganda’s previous constitutions; and a comparative study of constitutional and political arrangements in other countries.

Constitution-making should aim to balance conflicting views, work toward consensus and compromise, and protect minority rights. Although many countries have statistically analyzed the views gathered, the predominant public view or opinion does not necessarily prevail. It is normal for constitution-makers to need to balance a number of competing considerations when reaching decisions on major issues, and they would not normally seek to derive answers from a public opinion poll. For example, in South Africa the public overwhelmingly demanded the death penalty in the constitution. The constituent assembly weighed this against international human rights standards and the need to break with a violent past, and excluded this demand from the final text (leaving it to the courts to decide the issue by reference to the human rights provisions of the new constitution, which they soon did, deciding to declare the penalty unconstitutional).

Finally, a note of caution in relation to the consideration that consultation with the public may raise high expectations about what the constitution will provide. A draft that has overlooked something people viewed as important may disillusion the public about the process and the constitution. It may be important to provide a mechanism to monitor the translation of people’s views into a constitution-maker’s draft. For example, if a commission is consulting and preparing the draft, the legal instrument providing its mandate could require it to transmit to the main deliberative body both the draft text and a record of the views received.

Which body conducts public consultation

A constitutional commission established to prepare a draft constitution for submission to a constituent assembly or a parliament is often asked to consult the public. But where a larger body such as a constituent assembly is responsible for most steps in the process, including preparing the initial draft, it may establish its own special committees (e.g., Bolivia in 2009 and Nepal in 2010) to consult the public.

Governments have also set up special bodies mandated not only to consult the people before creation of the constitution-making body but also to provide it with a report on the public consultation (e.g., Colombia [1991] and Timor-Leste [2002]). This may help speed up the process because views can be collected while preparations for electing the main constitution- making body are made. The disadvantages of this approach are that the constitution-makers:

  • may have fewer opportunities to hear the concerns and aspirations of the public firsthand or to engage them in a discussion on the key issues and also build trust in the credibility of the process; and
  • may tend to ignore or mistrust public consultation reports in which they were not involved firsthand.

Both international and local civil society organizations have conducted public consultations to try to open up the process and engage the public. If the civil society actors are highly respected and credible, their public consultation reports may gain the attention of the constitution-makers. In Timor-Leste, the United Nations’ official reports were ignored because they were seen as a foreign product, but members of the constituent assembly did read public consultation reports prepared by the respected local human rights group Yayasan Hak.

Reasons for, and claims about the impacts of, public consultation

Justice Benjamin Odoki, the chair of the Uganda Constitutional Commission, stated:

The manner in which a constitution is finally adopted by the people is very important in demonstrating the legitimacy, popularity and acceptability of the constitution. . . . To command loyalty, obedience, respect, and confidence, the people must identify themselves with it through involvement and a sense of attachment. . . . The involvement of the people in constitution-making is therefore important in conferring legitimacy and acceptability to the constitution (Odoki 2005: 276).

Similar reasons for holding extensive public consultation have been echoed by other constitution-makers. Such views are in fact part of a wide spectrum of reasons why constitution- makers may undertake such activities, which may include promoting a deliberative process and opening public debate to a diversity of views so as to contribute to a national consensus on the constitutional framework, including the values the nation should be founded on:

  • legitimizing the process and the constitution that emerges from it by ensuring that the process is “open” and “democratic”;
  • promoting a sense of public ownership of the process and the constitution;
  • determining what are the divisive issues or the extent of public support for constitutional options in relation to such issues;
  • facilitating a political transition by encouraging change in the political system, in particular by seeking views of those who had previously been marginalized or excluded from the political and social life of the country (e.g., the process of seeking people’s views in South Africa [1996] was in part focused on involving black South Africans for the first time in the political process);
  • conducting dialogue with citizens on issues of national importance;
  • meeting the demands of groups with interests in a process—for example, people may hold demonstrations or demand to be consulted, or the international community may only fund or accept the legitimacy of the process if public consultation is conducted (e.g., the United Nations Development Programme would not fund a constitutional reform process in the postconflict Solomon Islands unless the constitution-makers held public consultation);
  • serving as a public relations campaign to improve the standing of the government, or of the process, rather than as a mechanism to genuinely listen to the views of the people; and
  • manipulating the consultative process so that the “results” support particular interests or agendas.

Of course, consultation with the people does not always take place or it takes place only in a limited way; it would be possible to make a similar list of the reasons why it does not happen. These include established traditions about decision-making that do not involve direct consultation with the people—often in part on the basis that a body such as parliament or a national conference (mainly in countries with Francophone influences; see part 3.1.3) represents the people in any event, making public consultation redundant; perceptions about constitution- making as a matter for politicians and experts; and political and other pressures for the constitution-making process to be dealt with quickly, so that allocating significant time for public consultation is seen as counterproductive.

There is too little research on the impact of public consultation in constitution-making processes to be able to assess the extent to which public consultation achieves or contributes to the achievement of even such clearly laudable goals as the increased legitimacy of a constitution. There is evidence, however, that public consultation may have a more modest impact such as broadening the social agenda of a constitution. For example, women’s involvement in constitution-making, inclusive of consultative processes, has contributed to more gender equity in the process as well as in the final content of the constitution (e.g., in Canada [1982], Nicaragua [1987], Uganda [1995], South Africa [1996], Afghanistan [2004], and Kenya [2005]).

Variations among countries in attitudes to public consultation by government and traditions of interest group organization and representation are important factors in reasons for choices for or against public consultation. In some countries, there is a deep tradition of public consultation, and if the public is not consulted the process will not be viewed as open or credible. More generally there is a growing expectation that public consultation by government bodies should occur in a wide range of situations, including constitution-making. In South Africa, where public consultation about constitutional issues was a new experience for the vast majority of the population, a poll taken by an independent evaluation group found that 83 percent of the people—regardless of race, ethnicity, or age—felt the constituent assembly should consult the public about the new constitution.

There may be far less pressure for public consultation in countries that have traditions of legitimate representational bodies—such as political parties, trade unions, and major NGOs (issues discussed in part 2.2.1, under the heading “Changing modes of making the constitution”). The general public may feel satisfied that the process of aggregating and representing views through established patterns and mechanisms will be followed and that in doing so even marginalized citizens will be heard. However, in divided societies that also have some experience of representative bodies, such as South Africa, the constitution-makers may still feel that it is important to reach out directly to previously marginalized citizens.

In countries emerging from violence, consultative processes can have other purposes. They can provide opportunities for the public to meet and sit with leaders who have previously been at war about contentious issues and are now cooperating as part of a constitution-making process. As in South Africa, such an experience can send a powerful message about the potential “transformational” nature of the process and the future possibilities for the country—both to elites and to the public.

One of the most important reasons for public consultation concerns the benefits of face-to face consultative meetings where constitution-makers discuss with citizens issues that they would not have had the chance to explore otherwise. The constitution-makers may be surprised at the sophisticated level of the discussions—even in poverty-stricken areas where few read or write. In Afghanistan [2004], commission members were often surprised to learn that rural populations were fairly tolerant of diverse religious beliefs and views. Public consultation has given many constitution-makers (even those initially opposed to public consultation) an increased appreciation of the diverse views, aspirations, and needs of different gender, ethnic, socioeconomic, or geographical groups.

On the other hand, some public consultation has led to demands for constitutional provisions that may be at odds with other sources of guidance being used by constitution-makers, such as international human rights norms. Examples may include demands for the death penalty or the exclusion in various ways of certain minority groups in society. However, understanding the reasons behind such views can help constitution-makers better address the concerns (see the discussion later in this part, under the heading “public consultation meetings”), and promoting dialogue about tolerance and why the new constitution should adhere to international human rights norms and protect minority rights.

The globalization of ideas and experiences through the Internet, social media, and other means has led to growing awareness in many countries of the trend toward participatory constitution- making. This has led to an increased expectation that constitution-making processes will include extensive provisions for consulting the public. For example, in Timor-Leste [2002], the Asia Foundation organized seminars on participatory constitution-making and brought speakers to discuss the experiences of Kenya, Papua New Guinea, South Africa, Thailand, and Uganda.

Hearing these stories of popular participation contributed to an increased demand for similar engagement in Timor-Leste.

The majority of the Timorese constituent assembly members felt that they could adequately represent the views of their constituencies (despite a weak and nascent political party system in which parties did not campaign on a platform based on specific proposals for provisions of the proposed independence constitution). The constituent assembly initially refused to consult the public on the draft constitution. The demands of public demonstrators, civil society monitoring groups, members of the international community, and the media led the constituent assembly to reconsider.

Some guiding principles for conducting a public consultation process

There is a trend toward consulting the public in a constitution-making process, but there has been little reflection about what constitutes a genuine and effective public consultation process. Unlike the situation with elections, there are no established standards for assessing whether a constitution-making process has been “free and fair.” Determining whether standards should be developed is an issue beyond the scope of this handbook. However, many processes have spent large sums of money consulting the public, only to have the views ignored or never analyzed. There have been numerous reasons for this, including insufficient resources or time to analyze the views, a lack of interest in using the views, and constitution-makers feeling that they have already heard firsthand the views of the public and do not require additional analysis of the input. (See part 2.2.4.)

However, at a minimum, for the consultation to be credible the views should be recorded, seriously considered and the public informed about how the views were used.

The following broad principles will facilitate a credible process—they are based on emerging standards of good practice (drawing on our own experiences of assisting with public consultation as well as numerous other practitioners):

  • Planning well in advance of the public consultation;
  • Establishing realistic timetables;
  • Preparing the public to participate meaningfully;
  • Being transparent;
  • Being representative;
  • Ensuring that the consultative process is accessible, secure and inclusive;
  • Respectfully listening to the public’s views;
  • Faithfully recording, collating, analyzing, and considering the views submitted;
  • Carefully considering the public’s views when making key decisions;
  • Being accountable and providing feedback;
  • Ensuring that the consultative process is nationally owned and led; and • Evaluating the consultative process.

Planning well in advance of the public consultation

One of the lessons learned from past public consultation processes is that the constitution- makers should begin work as early as possible on a strategic plan for public consultation. It needs to include a detailed set of tasks for every phase of the public consultation process.

Such a plan should seek to ensure that everyone conducting the public consultation is clear about what they are expected to do before, during, and after the process. It should include a detailed operational plan and accompanying budget. (See box 23 below, on making a strategic plan.) If the process will be highly participatory, with numerous phases, the planning process can take several months.

Box 17. Nepal 2009: Problems that arise when a process is poorly planned

The Nepalese public consultation process in 2009 is a cautionary tale about launching a public consultation process without a clear and agreed upon plan. There was little effort to prepare the public for the consultations. The constitution-making body launched into the consultation process by requesting that the members of the public phone in, e-mail, or send their views by mail. When few responded, a three-hundred-item questionnaire was prepared and distributed at the face-to-face public consultation meetings. However, the questionnaire was not tested beforehand, and it was overly complicated and confusing. Highly educated Nepalese had a hard time understanding the questions.

Additionally, the public did not have sufficient time to review and answer the questions. The respondents were expected to hand in the questionnaire at the end of the face-to- face meetings. The meetings were organized at the last minute with little advance notice, there was no harmonized plan for conducting the meetings or recording the views, and they were poorly attended. The exercise did generate thousands of views. But the constitution-making body did not have a plan for analyzing the views and reporting the results. In the end, each member of the constitution-making body was given about a thousand submissions to analyze. The methodology ranged from ignoring the submissions to handing them over to civil society actors or friends to assist with the analysis. The resulting analysis did not accurately reflect the views gathered, and at times was manipulated to suit the members’ own views.

Establishing realistic timetables

If widespread face-to-face public consultation meetings are planned, then depending on the specific context it can take several months or more to plan the process as well as to prepare the public to participate. It could take many more months to hold the public consultation. Analyzing the views may also take several months, depending on such factors as the form in which the views are received, the number of staff members available to analyze the data, and so on. (See part 2.2.4.) Reporting back to the public on the results and using the views to prepare a draft constitution or report may take an additional six months. Yet many constitution-making processes allocate less than a year (and at times only a few months) to complete all of these tasks in a highly participatory process. Planning a realistic timetable for credible public consultation requires identifying each step of the process and how long it will take to complete each step of the process.

Preparing the public to participate meaningfully

Civic education prior to the public consultation is critical for the public to participate meaningfully. (See part 2.2.2.) This will assist individuals, groups, and organizations to understand the process, how to participate and how to give their views with the constitution makers.

Being transparent

Those consulting should be transparent about the public’s role in the process, the deadline for receiving views, how to provide views, and how the views will be recorded, analyzed, and used. They should also inform the public about how they will receive feedback, in particular about how the views will be used and how they will know how the views affected the decision-making process. The views received should be available for the public to review. In Iceland, where the security of those sharing views is not considered a problem, all views are posted on the council’s official website. (See box 22 below.)

Being representative

The body or group holding a public consultation should be as diverse as possible. Smaller subgroups of the constitution-making body may be needed to ensure that as many face-to-face public consultation sessions as possible can be held. Such subgroups should be as representative as possible. For example, each group should include at least one woman so that women do not feel the process is being led only by men. This principle applies to other relevant groups such as minorities or political parties.

Ensuring that the consultative process is accessible, secure and inclusive

Here are some measures that can help ensure accessibility, security and inclusion of the process (see box 9 for a discussion of issues to consider to promote an inclusive process):

  • Notice. Provide sufficient notice about how and when to participate. Different social groups may need to be reached using different methods. Notice can be given through the mail or via e-mails, television or radio announcements, posters, announcements by village leaders, leaflets, or the Internet.
  • Language. To ensure accessibility, any important documentation should be in all relevant languages. Simultaneous interpretation at public meetings may be needed. For sight-impaired citizens, copies of the draft constitution and any other important documentation should be in Braille, or an audio recording of the draft being considered should be made available.
  • Venue. For consultation sessions that are open to all members of the public, the venue should be evaluated to determine whether it can be easily reached by public transportation, whether it can be accessed by the handicapped, or whether anyone is excluded (e.g., women from entering a male-only mosque). It will usually be important to go to where the group being consulted lives: in rural villages, slums, prisons, and so forth.
  • Level of formality. Neither a highly formal nor a very relaxed setting may feel appropriate. The cultural norms or preferences of the group or community being consulted will need to be considered. Public consultations should be structured in ways most likely to make participants understand the issues under discussion and feel comfortable enough to share their views freely.
  • Timing of public consultation. It may sometimes be necessary to arrange the consultative meetings to avoid any particular times that could exclude or limit attendance of people due to factors such as gender, occupation, or religion. For example, women may only have limited time periods in which they are free to attend. Consulting in advance about what days and times will work for groups that should be included may be essential.
  • Empowerment measures. To have access to the process, some groups may need encouragement or additional assistance, such as special civic education sessions or transportation to venues.
  • Specific meetings for those who cannot speak freely. If women do not feel comfortable speaking in front of men or youth in front of elders, holding separate face-to-face meetings with women and youth may be critical to hearing these voices.
  • Security. Ensure that sufficient security is provided. If the environment is too insecure, public consultations may not be possible. For example, in Zimbabwe [ongoing process] some people attending public consultation meetings were attacked and others felt intimidated to speak in public for fear of retribution later.

Respectfully listening to the public’s views

Those consulting should not advocate for certain views, defend a draft of the constitution, or correct or criticize any views or options put forward. Ideally, they should play the role of active listeners. However, this does not mean that debate and discussion should be discouraged. In face-to-face meetings, as far as is practicable, there should be enough time to ensure everyone who wishes to speak has the opportunity to do so.

Citizens should be encouraged to express their aspirations for the constitution on the most important basis of all: their experience as citizens of their country. For example, participants should feel free to talk about having no access to clean water or healthcare. They should not be expected to have in-depth knowledge of constitutional issues and what can or cannot be dealt with in a constitution. No one facilitating the consultation should say “This is not relevant.” It is the job of the constitution-makers to take the views and concerns and translate them into constitutional terms as necessary. (See the discussion later in part 2.2.3, under the heading “public consultation meetings,” for discussion of how views expressed by people on issues that may seem to have little connection to the constitution can assist constitution-makers in better understanding the attitudes, beliefs, and concerns of the people, thereby contributing to the constitution-making process.)

Faithfully recording, collating, analyzing, and considering the views submitted

The public consultation will not be credible unless there is a transparent plan for recording and analyzing the views and the public, media and civil society can confirm that these tasks are being done fairly. Part 2.2.4 provides guidance on each of these steps.

Carefully considering the public’s views when making key decisions

A constitution-making body needs to have skilled staff members who can ensure that the views received are made accessible to decision-makers in ways that best enable the views to be considered when decisions are being made. (See part 2.2.4 on the analysis and use of views.)

Being accountable and providing feedback

After the public consultation process is concluded, a final report should be provided that summarizes the results and explains how competing interests or perspectives were balanced and compromises reached. (For further discussion see part 2.2.4, under the heading “Reports of constitution-making bodies on use of the people’s views.”) It can also explain the extent to which public consultation affected the decisions made. In addition, those conducting the public consultation can sign codes of conduct to be held accountable for their conduct. (See appendix C for sample codes of conduct.)

Ensuring that the consultative process is nationally owned and led

Experienced foreign advisers can assist national actors in developing the plan to consult, and perhaps even in implementing the plan if needed. However, the lead roles in a public consultation must be undertaken by the relevant national actors. “Nationally owned” also means that the people should feel ownership of the process. This can be facilitated not only by simply consulting with the public but also by ensuring that the people are satisfied with the mechanisms and plan for public consultation.

Evaluating the consultative process

Evaluation of the consultative process should ideally occur at an early stage. Such evaluations should involve assessing whether the objectives are being met, and determining what is going well and what needs improvement. Ongoing evaluation from an early stage will allow changes to the consultative process to be made as required in order to improve it. Evaluation should be incorporated into the strategic work plan from the start.

Evaluation can be performed by an independent evaluator, by those conducting the process, by the participants themselves, or by a combination of these. In most cases, however, there will be advantages if competent external evaluators have a role.

Choosing methods for consulting the public

There is no single generally applicable and correct model for how to conduct a public consultation process. It is common for constitution-making processes that give a high priority to consulting to use a combination of methods to ensure that as many people as possible are given the opportunity to participate. For example, constitution makers may invite elites to make written submissions or attend hearings on particular issues, and they may travel to far-flung places to hold face-to-face meetings with rural or marginalized groups.

In a society in conflict, the process of constitution-making should serve many purposes. If reconciliation among groups is essential, the methods chosen will need to promote a deliberative process handled with sensitivity, avoiding methods and approaches that may refuel the conflict. This will have to be determined on a case-by-case basis. For example, in a country that has suffered atrocities, engaging in widespread public consultation on the future constitution before some form of healing has taken place may be counterproductive. Expectations for the process also have to be carefully managed otherwise the people may be disillusioned when the process and a new constitution does not lead to the hoped-for result.

Although there are potentially dozens of methods for consulting the public and experts on either the process or the content of the constitution, the methods most commonly used by constitution- makers have been:

  • Nonbinding referendums (see part 3.5 for a discussion of this public consultation method).
  • Requests for submissions—the requests can be made through the media, including social media tools. as well as more traditional methods, such as local leaders or strategically placed posters.
  • Questionnaire-based surveys—a set of questions that can be addressed to either a representative sampling of the population or a group of volunteer participants.
  • Face-to-face meetings—including meetings with the public, specific groups (e.g., women, business leaders, farmers, youth), thematically organized sessions (e.g., sessions focused on a specific constitutional topic such as human rights or the judiciary), focus groups, and experts. Face-to-face meetings combined with civic education efforts are often the best way to reach marginalized groups and encourage them to participate.

Most public consultation processes will use a combination of these methods depending on the reasons for holding the public consultation. The sections on civic education and guiding principles for public consultation provide tips for preparing the public and organizing open, transparent, participatory, and inclusive public consultation. Part 2.2.4 describes how the views gathered by any method should be recorded, analyzed, and used.

Requests for submissions of people’s views

The constitution-making body usually announces a time period for the receipt of submissions, often through the media. Printed material or messages broadcast in various ways can explain the reasons for the interest in receiving views and give an indication of the kinds of issues about which views might be submitted. A suggested format for making submissions may also be provided. The efforts of the Uganda Constitutional Commission to encourage and assist people to submit their views included preparation and wide distribution of an 111-page book discussing in simple language all major constitutional issues on the agenda, a 23-page brochure containing 253 guiding questions intended to help people prepare written memoranda of views, and a brochure entitled “Guidelines on Submission of Memoranda on Constitutional Issues.” Over 60,000 copies of each were distributed. Posters explaining the constitution-making process and inviting the submission of views were also distributed.

Some constitution-makers have specifically invited submissions from experts, groups, or organizations whose ideas it wanted to hear. Publicity for the consultative process can sometimes result in strong lobbying campaigns being launched, including petitions with thousands of signatures, and card campaigns. The range of forms in which views can be submitted is vast, from one- or two-line notes to long and detailed draft constitutions.

Using the Internet, phone lines, texting, and social media to call for and receive views

Rapidly changing technology is allowing constitution-makers to call for submissions or comments on a draft or set of proposals using, at times, innovative and ever-changing methods. Constitution-makers need to be ready to adapt to new technologies.

Text-message services using mobile phones have been used to send comments to the constitution-making body. The Women’s Coalition of Zimbabwe launched a texting campaign to push the parliamentary constitution committee to redress gender imbalances in the constitution-making process. In Somalia, where severe security problems made it impossible to hold public consultation meetings, there was extensive use of SMS (mobile telephone text messages) to receive views on constitutional issues. South Africa used a phone line to receive views and questions about the process.

Websites as well as social media tools such as Facebook and Twitter are other methods that can allow constitution-makers potentially to reach large numbers of people, including those in diaspora communities, away from their home countries. (See box 23 for an example of how Iceland’s constitution makers are using social media to hold widespread public consultation on the content of the constitution and keep the public informed of the process.) The increased numbers of public submissions that may be generated can create much extra work for a constitution-making body serious about analyzing the views.

Box 18. Use of the Internet in Kosovo [2008]

Constitution-makers created a website (www.kosovoconstitution.info) that became a central meeting space for citizens interested in discussing constitutional issues and providing feedback. The website was interactive and citizens could read the constitution drafts as they were being produced, and share their views. The constitution was translated into Albanian, Serbian, English, Bosnian, Turkish, and Roma. The website had more than 2,700,000 hits (the population is approximately one million people) and views were requested through this site.

Use of guiding questions

Some constitution-making bodies develop guiding questions on constitutional issues that are distributed prior to a public consultation process. They have been used to focus attention on the key constitutional issues, promote debate and discussion, and suggest the manner in which written or oral submissions can be made to a constitution-making body.

To prepare questions reflecting the public’s concerns, the Constitution of Kenya Review Commission (Kenya [2005]) developed a list of guiding questions only after extensive public consultation with communities at the local level. The list of twenty-two constitutional issues or themes reflected the concerns of the public. The commission then created a “red book,” which posed 199 guiding questions. The commission’s regional offices helped distribute the red book to all of the communities, and three- to five-member panels of the commission then engaged in public consultation on substantive issues. The red book helped citizens organize their oral presentations as well as their written submissions. The Rwanda Legal and Constitutional Commission organized public meetings in each of its sixty-three districts, and discussions were guided by a sixty-item questionnaire distributed in advance. Similar efforts by the Uganda Constitutional Commission were discussed earlier in this section (under the heading “Requests for submissions of people’s views”).

Practical tips for guiding questions

Guiding questions:

  • can be developed based on prior public consultation about the concerns of the people or based on a predetermined reform agenda;
  • should be made public and distributed far enough in advance of the public consultation process to promote debate and discussion and help people think about the issues;
  • should avoid jargon and be kept to an easy, digestible length (testing in advance can help determine when a set of guiding questions is too complicated or lengthy);
  • should be realistic about the issues on which citizens can make a choice, since certain choices may not be an option either for political and historical reasons or because of international obligations;
  • should pose real choices and not simply lead people to a particular predetermined conclusion;
  • should not raise expectations about what the new constitutional order can deliver (for example, it is misleading to ask “Do you think that government ought to provide free secondary education?” when this is not an option); and
  • should be in all local languages; in societies with low literacy levels they can be shared orally in advance of public consultation.

Use of questionnaire-based surveys

Conducting a scientific questionnaire-based survey

A constitution-making body may wish to know the public’s view on a constitutional option; for example, whether a parliamentary or presidential system should be adopted. To obtain a representative data set for the views of the public as a whole, the constitution-makers would need to use a scientific method called a “probability sample.” The benefit of the scientific probability sample is that it gets information not just from those who volunteer but even from those who would not otherwise participate. Statisticians have shown that it is possible to get a good sense of the views of the entire population by questioning quite a small sample; a group of two thousand people is often used to represent the views of a whole country. However, when a probability sample is conducted, everyone in the population should have an equal chance to participate. For example, the endeavor could involve surveying a person in every hundredth household.

We are not aware of a constitution-making body that has conducted a questionnaire-based survey using a probability sample. Uganda rejected the idea of a scientific survey because the commission felt it was more important to use public consultation to engage the people and promote dialogue and debate than simply to distribute a questionnaire to a set number of people. The commission may also have felt that such a survey would pressure it to answer why its proposals did not align with the results of the survey.

A good probability survey could be used to provide constitution-makers with information about

whether their views are shared by the population as a whole. A survey in Nepal carried out by civil society actors showed wide differences in support for federalism between members of parliament (93 percent) and citizens (42 percent), and among castes and ethnic groups, regions, and education levels. It also showed differences in attitudes toward official languages and the continuation of the Hindu state.

This type of survey is unlikely to tell the constitution-makers why groups hold certain views, unless the survey is extremely well designed and probably conducted through interviews. A scientific survey may not be welcome because elite negotiations have foreclosed certain options, whether or not they are views held by the majority of the people. A scientific survey can potentially lead to an increase in tensions or mistrust among communities by highlighting stark differences at any one moment of the process.

A deliberative process should create a dynamic that will lead to changes in views and, ideally, a greater willingness to compromise to reach consensus. A probability survey that is conducted at a single moment may not accurately reflect the situation even a few days after it has been conducted if the context is volatile. In particular, in unstable contexts, events can change public perceptions and views, as well as the political environment, overnight.

If a scientific survey is to be held only once, it may be most useful to hold it after conducting civic education and after the draft constitution has been circulated to the public. In particular, if the draft is to go to a referendum, a survey can indicate to constitution-makers where there is strong disagreement with the draft and provide them with the opportunity either to explain the draft or to revise it so that the constitution will be accepted.

A scientific survey may not be possible. In postconflict countries in particular there is rarely accurate demographic data about how many households there are in the country and how many citizens there are in particular groups or communities. There may be millions of people displaced outside the country; violence may still be widespread, precluding certain populations from being surveyed. It simply may not be possible to get a representative sample of views.

A good probability survey requires contracting experts to guarantee a scientifically designed sample. Where there are large numbers of illiterate or semiliterate citizens, interviews may need to be conducted to ensure that the survey is inclusive. Questions should be tested in advance so that they are well understood by the respondents and do not guide or influence them to give particular responses.

It is important to understand the limitations of surveys. A telephone questionnaire (in which numbers are randomly selected to be called) may be unrepresentative if everyone does not have a phone. Busy professional people may decline to respond. Surveys are often conducted only in major cities, or in only one language. All such factors may skew results so that they fail to reflect the views of the people as a whole. All of these objections can be overcome, but only by increasing the costs involved.

Box 19. Pitfalls to avoid when using volunteer questionnaires: The case of Iraq [2005]

In Iraq, illiterate citizens were largely excluded from a survey because they could not fill out the questionnaires, even though there was no other way to get their views. There was also no civic education prior to distribution of the questionnaires or testing of their contents ahead of time. Educated elites in Iraq could understand the questionnaires, but few others could. Distribution of the questionnaires was heavily skewed toward Shia- populated areas of the country, and no special efforts were made to reach women. It has been estimated that upwards of a hundred thousand questionnaires were collected, with only a small percentage coming from the other two major groups (Kurds and Sunnis). Although the views were clearly not representative of the country as a whole, this mattered little because the views were given to the constitution-makers too late to be considered in the decision-making process (Morrow 2010).

Volunteer questionnaires

Questionnaire-based surveys have tended to target only respondents who were sufficiently interested to participate (e.g., in Afghanistan, Iraq, Kenya, Nepal, Papua New Guinea, Uganda, and Zimbabwe). Latin America seems to have no tradition of using volunteer questionnaires in a constitution-making process.

Although some constitution-making bodies have tried to disseminate questionnaires widely and have statistically analyzed the results of these volunteer questionnaires, the results could not provide an accurate representation of the views of the public as a whole. It cannot be claimed that 80 percent of a country’s people support a particular constitutional idea simply because 80 percent of voluntary respondents took that view. It is also possible that 60 percent of the people know nothing about the constitution or the process, or that they do not care. It is therefore unwise to use only this method to consult with the public.

Reports on surveys

Reports on the results of a survey should describe the methodology used and the number of people surveyed, and provide the questions that were asked along with the statistics gathered. If the statistics are not representative, this should be explained, along with information about how the views were used.

Reports of surveys should be scrutinized carefully. For example, it was reported in the press that a survey in Kenya on attitudes toward abortion had found that approximately 80 percent of the people were opposed to abortion. An electronic billboard displayed this “fact” to the public. A little later a member of the company that had carried out the survey explained in the press that it had also asked people whether they would favor abortion in a number of specific situations (e.g., rape), and the proportion left as opposing abortion under any circumstances was reduced to 18 percent.

Practical tips on surveys

  • Draft questions so that they are easily understood, and test them in advance for specific audiences.
  • Allow for written answers, make the survey short, and leave space for the respondents to include other issues.
  • Produce the questionnaire in all relevant languages.
  • Provide instructions on how to fill it out; explain the constitution-making process, the role of the questionnaire, how the views will be used, and what feedback will be provided.
  • Use a logical order and place important issues in the beginning. If security is not an issue, request relevant biographical information such as age, ethnicity, and region of country.
  • Explain whether the responses to the questionnaire will be made public (e.g., posted on the official website) and provide an option for respondents to remain anonymous.
  • Give the public at least two weeks to read and fill out the questionnaire. (Such a time requirement would not apply to a scientific survey questionnaire.)
  • Make it easy to return the questionnaire via the Internet, through the mail, in a drop-off box, at a designated office, or at a public consultation meeting.

Use of face-to-face public consultation meetings

This method has the potential to promote a more deliberative and open process and—perhaps most important—allows constitution-makers to hear views and concerns firsthand. We discuss four types of face-to-face public consultation:

  • public consultation meetings (open to any participants);
  • focus groups;
  • meetings with sectoral groups (e.g., women, business leaders, nomads, youth); and
  • thematic meetings (e.g., human rights, judiciary, land rights).

Regardless of the type of public consultation organized, in postconflict contexts or divided societies, the challenges faced will often involve ongoing violent conflict or potential for conflict, high illiteracy rates, and mistrust of official processes, as well as limited resources and poor communication channels or inadequate transportation. The following discussion outlines how past processes have organized these various kinds of meetings and also how they addressed some of these common obstacles.

Public consultation meetings

In highly participatory processes, public meetings have been held countrywide and also in places with large diaspora populations. Constitution-makers (most commonly constitutional commissioners) have invested in organizing hundreds of meetings and engaging tens of thousands of citizens (e.g., in Papua New Guinea [1975], Uganda [1995], South Africa [1996], Rwanda [2003], and Kenya [2005]). Members of elite groups in most countries normally have ways of channelling their views into the process to ensure that they are heard. That is why many constitution-makers have emphasized using the resources available for public consultation to reach the marginalized and disadvantaged, in order to empower them to have a voice, or to participate in dialogue directed toward reconciliation.

As noted above, guiding questions have sometimes been used to frame the discussion. Prior to a draft constitution being prepared, public meetings should be open to any topic, unless certain reforms have already been excluded (e.g., by the legal mandate for the process). Eritrea set aside a four-month period for extensive public meetings on a set of proposals that had been widely distributed. The meetings began with an introduction of the proposals and then provided a period for questions and answers as well as the sharing of views. The questions were recorded and analyzed according to biographical information. Some 175 meetings were held, which lasted about three hours each. Constitutional commissioners were often inspired by the wisdom of the views given. In some countries recovering from conflict and even from atrocities, there may first need to be some other public process that enables people to begin to talk openly about their experiences of those circumstances (some form of a “day of reckoning”). Otherwise, the first attempt at public consultation may yield views that are not aspirational but rather focused on the past.

A prerequisite for open public meetings is a secure environment. Recently in Zimbabwe in 2010 participants were attacked at public consultation meetings. (See part 2.3.10 for a discussion of security issues.) The meetings must also promote the free expression of views. As noted previously, separate meetings may sometimes be needed for some groups (e.g., for women or youth if they are unable to express their views in public).

In Uganda [1995] and Kenya [2005] the commission members assured the public that every concern or experience was a relevant constitutional issue. In other processes, constitution- makers failed to listen. In Timor-Leste [2002] some of the constitution-makers would comment that the views being expressed were not constitutional matters. This was primarily because these constitution-makers did not understand why it was important to listen to the views of the people to ensure the constitution, to the extent possible, reflected their concerns or aspirations and addressed serious problems. For example, in Kenya a large percentage of the population complained about lack of access to medicine. Commission research showed that this issue was related to the need for improved decentralization of healthcare, and this finding was reported back to the participants.

Views that seem “off-topic” should also be carefully recorded because of what may underlie the concerns or desires expressed. In Bougainville [2004], for example, men commonly complained about women wearing “six-pocket trousers.” (This was seen as involving women dressing like men, thereby ignoring what some leaders saw as major differences in culturally based social and other roles for men and women.) These concerns did not lead the constitutional committee to consider making the wearing of trousers by women an unconstitutional act, but rather to incorporate more comprehensive gender equality provisions into the constitution, in order to combat the discrimination against women they heard about during public consultation. In short, public consultation can help constitution-makers better understand the attitudes, beliefs, and aspirations of the people.

To help organize meetings in far-flung places, constitution-makers have set up district or regional offices (e.g., in Afghanistan [2004] and Kenya [2005]). In Afghanistan, offices were also set up in Pakistan and Iran to facilitate meetings with diaspora populations. In South Africa, secretariat staff members worked closely with local leaders and civil society to organize meetings. In Kenya, the commission visited all 242 constituencies and set up constitutional committees in each one. The membership consisted of ten persons, three of whom would be ex officio: the local member of parliament, the chair of the county council in which the constituency was located, and the district coordinator. Each committee was to be as representative of the people of the constituency as possible. It was recommended that a third of the committee members should be women. The commission also established district-level offices to facilitate public consultation.

The Constitutional (Reeves) Commission was asked to review the 1990 constitution. It conducted public consultation (South Africa [1996]), local leaders and civil society helped organize transportation for people to reach central locations for meetings. In Afghanistan [2004], people had to find their own way, and some traveled for days to reach the meetings. Providing food at meetings for people who had traveled long distances and had little income was sometimes necessary.

In Fiji [1997] public consultations were held on how to reform the constitution but without preparing the public through a program of civic education. Transcripts of the meetings indicate that few of the views were informed by an understanding of the 1990 constitution or of constitutionalism. A representative of the Women’s Advisory Forum stated, “We did not have access to a copy of the constitution. We asked the District Officer for a spare copy to be able to quote the section or provision that covers this issue but he did not have a copy.” (Le Roy 2010)

In postconflict or transitional contexts the state is typically viewed with mistrust. Constitution- makers may need to persuade people that their efforts are genuine. A woman in Fiji commented that “some of my uncles thought it [the public consultation meeting] was maybe just for chiefs you know, and the commoners would not have any say and it would be a waste of time to go down and listen because their voice would not be heard anyway.” (Le Roy 2010) Prior to South Africa’s massive awareness-raising campaign about the public consultation, most citizens also doubted whether their views would be seriously considered. Where such concerns are likely, the constitution-makers should explain how the process will take place and how the views will be gathered, recorded, and considered.

Several countries have made considerable efforts to provide feedback, which also enhances the credibility of the process and encourages others to participate. The example of Kenya [2005], where each constituency received a report of the public meeting held there and could make corrections to the record, has been noted above. Further, a later report by the Constitution of Kenya Review Commission explained how views were considered and incorporated. In many other countries, however, there were no efforts to provide feedback. In Colombia [1991], Ecuador [1998], Venezuela [1999], and Bolivia [2009], the views were passed to the constitutional commissions but no efforts were made to check with participants to see if their views had been accurately captured or to explain how they had been taken into account.

Focus groups

Focus groups involve group discussions that follow a set agenda and are led by a moderator. To be effective, the groups are kept small; they involve between six and ten people. The discussions and interactions among participants are designed to provide insight into the views of the participants, and the thoughts and feelings behind the views. The analysis of the outcomes is designed to help decisions-makers test their assumptions and take the views and concerns of the public into consideration when preparing the constitution. If the focus groups are about how to make the constitution, the attitudes expressed can help the constitution-makers improve the design of the process and ensure that concerns are addressed at an early stage.

Focus groups may have a better chance than polls or surveys of capturing the complexities of the constitutional debate and promoting rich discussions. However, as with questionnaires, focus groups can capture only a particular moment in the process. As a result, if such groups are to prove useful to the decision-makers, they may need to be held periodically because the public’s views can change during a process because of the public debate or other factors in a dynamic process.

Unlike probability surveys, focus groups are a qualitative research method. Because of the small number of views gathered (depending on the number of groups organized), they will not be statistically representative of the population as a whole. Organizations such as Interpeace and the National Democratic Institute have used this method to feed information to decision-makers in places such as Israel, Sudan, and Timor-Leste.

As far as we are aware, constitution-makers themselves have not used this type of approach (though in Somalia focus groups set up by the National Democratic Institute were part of a process coordinated by the United Nations because the constitutional commission could not set

up its own focus groups). The official process has typically underscored organizing larger meetings, and the moderators were not specifically trained to use discussion to get at deeper underlying concerns about constitutional issues. This may be because of the emphasis on getting large numbers of people to participate rather than exploring what smaller group discussions could yield in terms of research for the task at hand.

In deeply divided societies the focus group method may be a useful first step in understanding the views of the different groups before embarking on a more open process of civic education and debate that could refuel conflict if it did not first take into consideration the current dynamic in the country. For example, the focus groups could first be held with homogenous groups. This method might also be effective in insecure environments where open public meetings would be vulnerable to threats or attacks.

Meetings with sectoral groups

These meetings are held to get an understanding of the concerns and views of particular groups, such as business leaders, political parties, the media, nomads, women, and youth. These tend to be larger group public consultation meetings, but they can also be organized as focus groups. Certain views may not be voiced in open public meetings. For example, in Eritrea women rarely speak in the public meetings. In other contexts, youth may not feel comfortable speaking out with their elders present. Sectoral group meetings can help ensure that all voices are being heard and considered.

If local leaders heavily influence the views and opinions of communities, meetings with sectoral groups may help the constitution-makers understand how the process is viewed and what messages will be communicated from the leaders to the public. This may be especially so in clan-based societies. Working with key local or community leaders to organize broader public consultation meetings can yield greater credibility and public participation in the process.

In Afghanistan [2004], because of the lack of security in the country, no public meetings were organized. Rather, the meetings were by invitation only and focused on receiving the views of particular groups, including internally displaced persons and religious minorities. Similarly, in Puntland [2009], the commission identified a set group of stakeholders to provide input into the draft subnational constitution. It included:

  • governors, mayors, and officials from the ministries of the interior and local government;
  • civil society, umbrella organizations, and business leaders; and
  • traditional and religious leaders.

Prior to each forum, participants were provided with a copy of the draft revised constitution and requested to identify specific articles for discussion, amendment, or suppression; to note gaps; and to suggest improvements in the drafting language. Each forum opened with a presentation by the legal adviser on the general content of the draft and the process by which it had been drafted. The comments and input from participants were tabulated and recorded in a matrix that was later used by the commission to finalize the draft. The contributions tended to reflect the category to which the individuals belonged. Examples include increased autonomy from the central government, including access to revenue generated through natural resources; women’s rights; education; and political and economic empowerment.

In addition to organizing open public meetings throughout the country, South Africa’s constituent assembly organized “national sector public hearings.” In these forums, the members met with national stakeholder groups, such as women, business leaders, and religious organizations, to get their input on specific questions of interest to these groups. However, in Brazil [1988], the subcommittees of the constituent assembly organized hearings only for interest groups, including environmentalists, labour groups, indigenous peoples, and even maids. Political parties were poorly organized, and interest groups fought strongly to get their interests reflected in the constitution. Perhaps one of the weaknesses of the Brazilian process was that the constituent assembly members did not also travel throughout the country and hear the views of the public directly. This omission may have led to a process that was less deliberative and more of an aggregation of narrow and short-term interests.

Thematic meetings

In many of the Andean countries, such as Colombia [1991], Ecuador [1998], and Bolivia [2009], public consultation meetings were organized around thematic issues that mirrored the internal organization of the constituent assemblies. Indeed, they were often organized by thematic committees of the assemblies. The committees convened public gatherings to discuss specific topics, such as human rights or the judiciary. This was an efficient way of helping ensure that views on a specific subject were heard by those addressing that topic. However, if this is the only type of meeting held, public consultation may discourage the general public from attending because people may be less interested in giving views on how the judiciary should be structured, for example, than simply sharing more general concerns and aspirations. Civil society will tend to participate the most.

Practical tips for organizing all types of face-to-face meetings

  • Give advance notice of meetings through local leaders, the media, district offices, and other means.
  • If there are specific issues upon which views are sought, explain this and notify participants far enough in advance so that they will be able to prepare.
  • Ensure that all participants have advance copies of any public consultation documents (such as guiding questions) in all relevant languages and in a format that avoids legal jargon.
  • Train facilitators, in particular, how to address conflicts and to promote dialogue (especially where these are key objectives, as, for example, in a divided or postconflict society).
  • Try to ensure that constitution-makers, facilitators and other key official actors at the public consultation reflect a balance to the extent possible with regard to gender, age, race, and any other relevant diversity factor.
  • Record all necessary biographical information about the participants unless this information would lead to the intimidation of those sharing their views.
  • Introduce the agenda and all facilitators and speakers and explain the role of other staff members present, such as those recording the public consultation.
  • Explain the objectives of the public consultation, the time allotted to each speaker, how the meeting fits into the wider discussions held on the constitution, how public views will be gathered, recorded, and used, and how feedback will be provided.
  • Record all views carefully.
  • Provide time for questions and answers about the public consultation or for general debate and discussion.
  • Provide interpreters if necessary, including in sign language.

Using video to facilitate public consultation

Interpeace regularly uses video in its peacebuilding work, but to our knowledge this has not been used in a constitution-making process. Careful (and perhaps creative) use of video of various phases of consultative processes may have the following uses and benefits for a public consultation process:

  • It can be shared with all constitution-makers. One of the key benefits of a public consultation process is that those preparing the constitution get to see and hear firsthand the concerns of the people from different parts of the country, groups, and communities. But there is rarely enough time for members to travel to all areas of the country. Video footage can capture the essence of meetings in all areas and give members who were not in attendance the benefit of hearing a wider perspective. Or, if an external group is organizing meetings, it can film and edit the meetings to share with the official body.
  • It is a preparation tool for facilitators. In the testing phase, video footage can be used to reflect how focus groups or public meetings can be improved. It can also be used as a training tool to support the skill development of other facilitators.
  • It promotes dialogue among groups. Showing footage of a group or community discussing constitutional issues can stimulate discussion elsewhere. Where geographical, social, or political reasons may prevent different groups from communicating, showing videos of the conversations of one group to the other can create an experience of listening and possibly seeing the humanity of the other group. Depending on what is appropriate and possible at a given time, video footage of conversations within each group can gradually transform into “indirect dialogue.” Video documentaries can also facilitate the sharing of views of refugees and the members of the diaspora. Showing footage of others discussing constitutional issues, even sensitive ones, can also encourage groups to participate that may have viewed a constitution-making process as something only “elites” should do.
  • It brings “public opinion” to a sociopolitically elite audience—and vice versa. Urban elites who are not involved in public consultation may not have opportunities to listen to the views of disadvantaged, minority, or rural citizens. And where the media do not reach far or only disseminate “official” discourse, video footage of interviews and discussions of these different groups can be shared.
  • It keeps constitution-makers involved in the public consultation. If those preparing the constitution are not involved in the process of consulting the public, they may tend to ignore the results of the process. In Timor-Leste it was suggested that the constituent assembly leaders did not trust that reports of a public consultation process held in advance of the election of the assembly were accurate, or they were concerned that the reports had been manipulated. In such a situation, video footage could illustrate that the public views of different sections of society had been captured and transmitted accurately.
  • It documents the impact of dialogue. Video is the most powerful way to show the kinds of changes in attitudes, discourse, and interactions that constructive dialogue can help bring about. This can be used to show constitution-makers the direction of the constitutional discourse in communities. Video footage can be a monitoring and evaluation tool for the participatory process.
  • It creates a historical record of the constitution-making process. A new constitution is an important historical event in the life of a country. A record of the constitutional dialogue can be used in a constitutional museum (see part 2.3.7) or in other educational institutions.

There are, as always, also dilemmas and risks involved with using video. Filming can intimidate participants and perhaps silence those who might otherwise speak. It can also have the reverse effect and lead participants to speak at length and for the camera. It can pose a serious security risk for participants if intimidation or coercion is a problem in the process. Decisions may need to be made in advance about whether specific locations of meetings, as well as the names of speakers, should be provided.

If the benefits of video outweigh the risks, production and editing choices will need to be made. What kind of attention span does the anticipated audience have? Certain audiences have little time, and the key messages need to be gotten across quickly. Others will not only be willing but even eager to watch a longer film that provides a wider range and more in-depth perspectives. Films of different lengths could be made for different purposes. How will decisions be made about whose voices are portrayed?

Viewers may question whether the views presented are representative. If a film shows different groups of constitution-makers consulting the public, the constitution-makers themselves can agree that the captured public consultation session conveyed the essence of the discussions and views presented.


2.2.4 Receiving and analyzing the people’s views

Whatever decision is made about the methods of consulting, the public views gathered should be handled in a transparent and accountable manner and be carefully considered. This requires careful planning. Constitution-makers are often surprised by the number of citizens who actively participate. Some public consultation processes generate a significant number of public submissions that can be either oral (recorded during face-to-face meetings or from special phone lines) or written and in the form of questionnaires, petitions, memoranda, or draft constitutions. With the recent option of sending comments via the Internet or by texting, the number of submissions could run into the hundreds of thousands.

Written submissions may be a paragraph or hundreds of pages long. Many processes have received thousands of written and oral submissions and tens of thousands of questionnaires. In Afghanistan [2004], the combined public input was over a hundred thousand submissions. To ensure that the endeavor is a genuine effort to consult the public, the constitution-making body should be well prepared to record, collate, analyze, summarize, and report on the results of public consultation.

Making use of these views is a major task. In this section, we begin with a brief discussion of the experience of constitution-making processes that have made major efforts to receive the views of the people. In doing so we discuss why even some processes that make efforts to collect people’s views may do little to analyze those views or to make use of them in decisions about the new constitution. Drawing on the experience of processes where the people’s views have been analyzed and used in decision-making, we then discuss:

  • how the different purposes for which the views of the people are received and used by constitution-makers can affect the work involved in receiving and analyzing views;
  • a range of more general issues concerning how constitution-making bodies organize the work involved in receiving and processing views; and
  • the reports that constitution-making bodies make about their use of the people’s views.

Experiences of processes in which the people’s views have been received

Extensive use by constitution-making bodies of the people’s views in making decisions on constitutional arrangements is a relatively new development. Until the 1960s and 1970s, constitution-making tended to be regarded as a matter mainly for political leaders and experts on constitutional issues. There has been a significant change in the past thirty to forty years, in part based on broadening concepts of the people’s right to participate.

Nevertheless, while in recent years the people have often been consulted, the number of cases in which the views received have been carefully analyzed and used in making decisions about the new constitution has been limited. One of the first of these was Papua New Guinea [1975]. Others have included Uganda [1995], Eritrea [1997], Albania [1998], Bougainville [2004], Kenya [2005; 2010], and Nauru [2010].

The processes in which the greatest efforts are made to consult the people and receive and analyze their views tend to be in countries with large rural populations, and where there are not well-established ways in which the people’s views can readily be aggregated by broadly representative bodies. In many countries (especially those classified as relatively “well developed”) there are long-established ways in which the people’s views on controversial issues tend to be aggregated by bodies seen as legitimately representing the main strands of public opinion. They may include political parties, trade unions, and major NGOs. When constitution- making processes occur in such countries, representative bodies and the general public may all tend to assume that established patterns of aggregating views will be followed. As a result, there are less likely to be major consultative efforts where views are collected and analyzed, and instead more likely to be a limited public consultation process, in some cases one that mainly engages with a few categories of major organizations.

In addition, there are many processes where there is little or no focus on people’s views as a source for decisions. This may be because constitution-making is a negotiated process, as is often the case in postconflict situations where parties to a peace process negotiate a settlement that includes constitutional change. In still other cases, it is assumed that the people’s representatives, such as members of parliament, of a constituent assembly, or of a national conference already have a mandate to express the views of those who elected them (or whose interests they were nominated to represent, as with appointed members of a constituent assembly or national conference), so there is no further public consultation required.

Box 20. How South Africa’s two million submissions were counted

In South Africa [1996], it is sometimes claimed that more than two million submissions were received. Most were signatures on petitions (mainly on specific issues); there were only about thirteen thousand substantive submissions. However, even though these submissions were analyzed and reports about them were provided to technical committees of the constituent assembly, for the most part they had a limited impact on decisions about the constitution, largely because the primary outcomes were negotiated among the major political parties.

Box 21. Use of views in Papua New Guinea [1975]

Although extensive use was made of the many views collected, and the recommendations of the pre-independence Constitutional Planning Committee are regarded as being based heavily on the views of the people, twenty years later one member of the committee said, “in the end we abandoned the idea of analyzing all the submissions that came in, because there were just too many. And there was also, to a certain degree, a position taken . . . that we represented the people and that in some ways the people had to be led and not be followed” (Mackenzie Daugi, member of the Papua New Guinea Constitutional Planning Committee, in Regan, Jessup and Kwa 2001: 361–62).

What perhaps might at first seem odd is that in a number of constitution-making processes, while considerable efforts were made to collect people’s views, those views subsequently receive little attention from the constitution-makers. In Rwanda [2003] only 7 percent of the responses to fifty thousand lengthy questionnaires provided to the people by the constitutional commission were analyzed. In Iraq [2005] the questionnaires that had been distributed and gathered were never looked at by the constitution-makers.

Reasons why views are not analyzed may include:

  • a failure to make a plan or budget to effectively analyze and use the views;
  • the view held by primarily elected constitution-makers that they represent the people and so should be free to make decisions based on what they think is best.
  • the effort and extensive resources required if large numbers of written and other submissions are to be received and analyzed, and the extreme time pressures that are often experienced in constitution-making processes;
  • constitution-makers who participate in numerous face-to-face meetings with the public feeling that they are capable of making their own assessments of what they have heard, and do not need further analysis of transcriptions of what was said at such meetings or of what they may feel is similar material contained in written submissions;
  • people often being consulted about their views for purposes other than to inform the constitution-makers, including:
    • raising awareness about constitutional issues (almost a form of civic education);
    • attempting to legitimize the process;
    • responding to expectations of or pressures from civil society, the media, or the international community; and
  • the pressures on constitution-makers to ignore, or downplay, the views of the people on particular issues, as, for example, in South Africa, where strong popular pressures for constitutional provisions in support of capital punishment and in favor of prohibitions on abortion were ignored because of the concern of the African National Congress (and others) to ensure that the new constitution contained progressive protections for human rights.

The views of the people are never the only source the constitution-making body is permitted to use. (See part 2.2.3.) While the people’s views may be important, the use of other sources necessarily results in constitution-makers allocating their research and analysis efforts in other directions. That can result in the development of views on constitutional issues that are different from, and even contrary to, those that predominate in the views submitted by the people.

Effects of public consultation choices for receiving and analyzing the people’s views

A constitution-making body may want to receive and analyze the views of the people for a range of quite different purposes. Such purposes can have major effects on the type and the timing of the work involved, and staff and resources needed to do that work.

An initial round of public consultation about the people’s views may be held to help the constitution-making body determine the agenda of issues to be addressed as part of the process. In such cases a subsequent and usually much broader public consultation process will usually take place concerning that agenda. Quite apart from the task of organizing the public consultation, the receipt and analysis of views required people to record the meetings, transcribe the views presented, and summarize those views into reports the commission used in making decisions on the agenda of constitutional issues.

The most common purposes for obtaining views, however, usually concern developing proposals on the new constitution. This can be done in the many ways outlined in the earlier discussion of public consultation, and may require attention to the organization and resource issues outlined in the general discussion of requirements for receiving and processing views.

If, however, people’s views are sought in relation to a draft constitution, additional organizational and resource issues will arise. There will be a need to print copies of the draft, or at least to prepare adequate explanatory materials (i.e., providing enough information to the people to enable them to be meaningfully consulted). There may be a need to have the draft constitution and explanatory material translated into local languages. It may also be necessary to have a specifically designed civic education program to help people understand the content of the draft constitution sufficiently to be able to provide meaningful comments.

One purpose of analyzing views is to provide the constitution-makers with insights into the extent to which views differ between regions of a country, or among ethnic or religious communities within a country. An understanding of such variations may be of great significance in the process of making recommendations on constitutional issues, especially in a postconflict situation. To ensure that such an analysis is possible, it will usually be necessary to organize the consultative process in such a way that the views of the distinct communities are separated as they are received, or so they can readily be separated and subjected to later analysis. (The 210 separate constituency reports in Kenya are an example of what can be done.)

A further reason for receiving and analyzing views may be to assist the constitution-making body in the resolution of contentious issues. In Uganda, a careful statistical analysis of views submitted to the constitutional commission on divisive issues was one of several sources the commission used to make decisions on the limited number of issues where a broad consensus had not yet emerged after a highly consultative process taking more than three years. As outlined below, the commission needed a specialist staff and significant resources to undertake the analysis of the views on those issues contained in the 25,547 written submissions it received. The commission also published the results of the statistical analysis, as a means of reducing any suspicion that the statistical analysis had not been conducted in a bona fide manner.

Requirements for receiving and processing views

The following discussion provides a brief overview of some of the issues that arise when receiving and analyzing the views of the people.

Who collects and analyzes the views

While most commonly this work is done by the constitution-making body or its administrative management body (e.g., its secretariat), there can be major difficulties involved in doing this. Putting together the personnel and resources required can be a major exercise, one that it is hard for the constitution-making body to do on its own and in the limited time likely to be available. So, in some processes, either existing governmental or nongovernmental bodies undertake the work on behalf of the constitution-making body, or a special body is established for that purpose.

In Papua New Guinea, the colonial government’s political education office (later called the department of information) was put at the disposal of the constitutional planning committee. It designed the public consultation program and conducted the training of advisers for discussion groups established all over the country, through which much of the public consultation took place. Those advisers then took responsibility for transmitting to the committee the answers given by the discussion groups to guiding questions contained in six discussion papers circulated by the committee. In Colombia, a government commission organized almost sixteen thousand working groups throughout the country to gather public views. It worked for the three months before the constituent assembly met. It then organized the written submissions for use by the constituent assembly. In Albania [1998], a newly established ministry of institutional reform and relations with parliament was established to support the constitution-making body (a committee of the parliament). The ministry assisted in establishing a quasi nongovernmental body to facilitate public participation and the processing of views. It was funded mainly by donors.

In the more common situation where the constitution-making body itself takes responsibility for coordinating public consultation and the receipt and analysis of views that it generates, especially ones that continue for several years, constitution-making bodies do build up their own workforces, including specialist employees. An example of the personnel required concerns the Uganda Constitutional Commission, which took on the work of receiving and analyzing the memoranda, reports, and oral submissions containing the Ugandan people’s views. This was a major exercise. All submissions were summarized for general use by the commission. In addition, the views expressed in all submissions were examined to identify positions expressed on a number of controversial issues. Those views were analyzed statistically in order to help the commission make its decisions on the controversial issues. The commission’s workforce, which already had almost a hundred personnel, many working on summarizing and managing written submissions, was expanded by the employment of forty-eight university graduates and other staff members, including computer specialists.

The various forms in which views may be provided, and receiving and storing the views

People may provide their views to constitution-makers in a wide range of ways, including:

  • oral submissions at public meetings and in some processes over dedicated telephone lines (as in South Africa);
  • answers to questionnaires or to guiding questions circulated by the constitution-making body, which might be in writing or could perhaps be submitted online;
  • written or printed submissions on issues of particular concern to the authors, which can include brief notes, letters, long and detailed submissions, draft constitutions, and the like; and
  • petitions on particular issues, in some cases signed by hundreds of thousands of people.

With increasing access to electronic forms of communication, the ways views can be submitted is increasing, including:

  • text messages sent through mobile telephone networks;
  • e-mails;
  • blogs;
  • submissions made on dedicated websites; and
  • Twitter and Facebook.

A constitution-making body that is serious about receiving and analyzing views needs to give careful attention to the arrangements it makes for managing these views in ways that ensure that the material is accessible to and readily available for analysis by the constitution-making body.

For management of large volumes of views submitted electronically, it will be essential for a constitution-making body to employ a specialist staff capable of setting up systems for recording receipt of such submissions, and electronic storage and backup. Such arrangements will need to make the material readily accessible to the constitution-makers and their staff, and also available for such statistical and other kinds of analysis as the constitution-makers require. Special arrangements may be needed if there is substantial use of video technology to record views. Where large numbers of oral and written or printed submissions are generated, arrangements will be required just to ensure that all such material reaches the constitution-making body. In a large country where much of the population lives in far-flung and relatively inaccessible areas, literacy levels are low, and many local languages are spoken, systems for receiving views may need to include arrangements for:

  • recording what is said at face-to-face meetings; and
  • encouraging submission of views in written or printed form, and then collecting the submissions and getting them to the constitution-making body.

Box 22. Use of social media to prepare a constitution: The case of Iceland [ongoing process]

The Icelandic Constitutional Council has established a website (http://stjornlagarad.is/english/) with links to Facebook (http://www.facebook.com/Stjornlagaradand), YouTube, and Flickr. The council views this as an effective way to engage a large percentage of the public becauase at least 90 percent of Icelandic citizens have access to the Internet, and most have Facebook pages. The public is invited through media advertisements, the Web, and social media to send messages using Twitter, Facebook, or the website. All of the messages are posted as long as the sender provides his or her name and the message is cleared by the council’s staff. Others can comment on the views expressed, which has been promoting debate on the issues. Every day the council posts short interviews with council members on YouTube and Facebook. Every Thursday, the council meetings are broadcast live both on the council’s website and on Facebook. The website also includes the current constitution, drafts of the constitution and other key documents, a schedule of meetings and events, the council’s procedures, names of council members, a newsletter, and the like. The country is relatively small, so this may be manageable. Such an experiment might prove more challenging in a larger country. The use of social media to prepare a constitution is a new approach (other countries, such as Ghana, have used social media tools as well but not as extensively) and should be studied to determine how it can be most effective.

In Kenya, the Constitution of Kenya Review Commission established documentation centers in all administrative districts not only to facilitate distribution of civic education material produced by the commission but also to act as depositories for submissions. In other places, government and administrative staffs have collected submissions from the public and forwarded them to the constitution-making body.

After the views have been received, the need for the material to be stored and managed in ways that ensure accessibility to the constitution-makers and availability for statistical or other forms of analysis gives rise to a number of major considerations, including:

  • Filing and storage systems will be needed for both electronic and documentary submissions. Consideration will need to be given to whether written or printed submissions are saved online (to make them more readily retrievable) and about where and how the originals will be stored.
  • Oral submissions may need to be transcribed, to make them available for reading by members of the constitution-making body, and perhaps for inclusion in statistical analyses of views submitted.
  • Both oral and written or printed submissions may need to be translated from local languages into languages that enable the views to be read and (if necessary) analyzed statistically.
  • In some processes, constitution-making bodies have put great effort into summarizing submissions so as to make them more readily accessible to both perusal by the constitution- makers and statistical analysis.
  • Constitution-making bodies need to consider how best to address the concerns, often expressed by people when consulted, that their views will not be used, or may be manipulated (e.g., to meet the interests of a political party). Sometimes such concerns are answered by producing reports of the views received. It might also be possible to make the views received available on a website, accessible to all who are interested.

For a more detailed discussion of issues about the records that may need to be kept by a constitution-making body, inclusive of records of submissions of views, see part 2.3.8.

Analysis of the views

A credible public consultation process requires analysis of the views. In particular in cases where large numbers of submissions (oral, written, printed, or electronic) are received, if only because it is usually impossible for members of the constitution-making body to read every submission. Apart from an analysis that essentially summarizes or identifies main themes expressed by the participants, various other forms of analysis may be required. These can depend on the terms of the legal mandate of the constitution-making body, and also on which of the various purposes for which views are received and analyzed are applicable in the particular case.

Most commonly, there is no special purpose beyond making the views readily available for use by the constitution-making body when it makes its decisions on constitutional issues. But to do that it may be important to have the views available in a range of forms. These might include analyses of views on particular issues, along with their main variants; analyses of views from different regions; or statistical analyses of options for responding to certain issues. There is no clear pattern here in terms of the tasks involved or in the way such tasks should be carried out.

For answers to questionnaires or to guiding questions that have been closely followed in submissions, a statistical analysis may be reasonably straightforward. But where submissions containing views are more open-ended, various technical issues may arise. For example, should a submission from a large political party, church body, NGO, or trade union be given the same statistical value as a submission from an individual? When statistical analysis is undertaken to

help resolve divisive issues, usually the analysis aims to identify the number or percentage of views submitted that support each particular option. As was the case with the Uganda Constitutional Commission in 1992, this may require analysts to examine each submission to identify whether the submission takes a position on any divisive issue being analyzed, and what that position is. Determining such issues can involve matters of judgment.

Wherever summary or further analysis of views is required, there is the potential that the public will be concerned about manipulation of the analysis. The sensitivity can be especially high when statistical analysis is used as part of an effort to handle divisive issues. In all such cases it may be vital to establish procedures to protect the data from manipulation. To this end, the Uganda Constitutional Commission used several levels of review for all data entry in its statistical analysis exercise. Constitution-making bodies can help build confidence in their analyses by being as open and transparent as possible about:

  • their decision to undertake statistical analysis;
  • the method of analysis being used;
  • their efforts to ensure that there is no manipulation of data or results; and
  • the results of the analysis, ideally through publication of reports on the outcomes.

Examples of processes for which reports focusing on analyses of views were published include Uganda (where a report of the results of statistical analyses of views expressed on divisive issues was included in the three-volume report published by the constitutional commission) and Kenya [2005], where the Constitution of Kenya Review Commission published a number of reports on its analysis of people’s views, including separate reports on views expressed in submissions from each of Kenya’s 210 electoral constituencies.

Staff, resources, and funds

Whether the views of the people are received, managed, and analyzed by the constitution- making body or by another agency, a large-scale public consultation process that results in many submissions will usually bring with it the need for specialist personnel, technical equipment, and funds. Personnel needs could include record keepers, data-entry personnel (physical and digital), computer specialists capable of developing software, managing digital record keeping and statistical analysis, and people to transcribe oral submissions, translate oral and written submissions, and persons who can summarize and analyze submissions.

Equipment required may include filing cabinets (or other pieces for storing original documents), equipment for transcribing recorded oral submissions, and scanners and computer software and hardware for storing and analyzing written and printed submissions. In Zimbabwe [ongoing process] those managing the process had to develop a system of locking away or securing the original submissions so that none of the political parties could later claim the submissions had been tampered with.

Serious allocations will be required, not just of staff members, resources and funds but of also time. This commitment will exceed what was needed for civic education and public consultation. A serious effort to collect and analyze views will be almost impossible unless adequate provision for such an effort is made in the work program of the constitution-making body from an early stage.

Reports of constitution-making bodies on use of the people’s views

Some constitution-making bodies, notably constitutional commissions and committees of parliament, prepare and publish reports of their work. (Other constitution-making bodies such as constituent assemblies, parliaments, and constitutional conferences do not in general issue reports on constitution-making, though verbatim reports of the debates of such bodies are often published.) Reports of constitutional commissions and the like are usually intended to explain the reasons for their recommendations on constitutional issues. As such, they are usually directed mainly to the constituent assembly or parliament that will debate the draft constitution prepared by the commission or committee.

An additional and often important purpose of such reports is to be transparent and inform the public about the analysis of the views of the people, and to explain how those views were taken into account (or discounted or ignored) in making decisions on constitutional issues.

Because they are directed at persuading constituent assemblies and parliaments of the value of the proposals for the draft constitution that they explain, such reports often are long and detailed. The volume of the 1974 report of the Papua New Guinea Constitutional Planning Committee containing the narrative and recommendations was 348 pages, while the 2004 report of the Bougainville Constitutional Commission was 368 pages. The 1996 report of the Fiji Constitution Review Commission was 791 pages. The Uganda Constitutional Commission’s final report consisted of three separate volumes:

  • a 144-page draft constitution;
  • a 921-page volume, Analysis and Recommendations, explaining the reasons for the decisions on which the draft constitution was based; and
  • a 383-page Index of Sources of People’s Views, listing all written submissions received and reports of public seminars conducted by the commission, and containing tables summarizing the statistical analysis used by the commission to help it make decisions on several divisive issues.

While such lengthy reports may be read by some in the constituent assembly or the parliament, their length and detail usually make them inaccessible to most ordinary citizens.

An alternative approach, used by the Constitution of Kenya Review Commission, was to publish not only reports giving feedback on views received in each constituency, but also a short version of the major report addressing the constitutional recommendations of the commission. The short report was specifically intended to overcome the common problems of accessibility encountered with long and detailed reports.

The roles of such reports are in some cases made more significant by provisions in a new constitution requiring courts interpreting that constitution to make reference to key documents relevant to the original intention of its provisions. In the constitutions of Papua New Guinea and of the Autonomous Region of Bougainville, such provisions extend the reports of the respective constitutional commissions. In that way, to the extent to which the reports analyze and rely upon the views of the people (and in both cases they do to a considerable degree), those views remain relevant to the ongoing interpretation of the constitution.


2.2 Public participation

In this section we discuss the role of public participation in constitution-making, how to facilitate an inclusive process (see box 9) as well as the risks and opportunities related to a highly participatory process. We then focus on the tasks undertaken by constitution-making bodies to promote public participation in the official process. They include preparing the public to participate through civic education and public information campaigns, as well as consulting the public on issues such as whether a process should take place (and how) and what should be in the constitution itself.

Some aspects of public participation in constitution-making processes are not discussed in this section, but are instead considered elsewhere in this handbook. We discuss the referendum procedure in part 3.5. Issues about how civil society and the media participate in the official process are discussed in part 4.1. Representation of the diversity of the nation as a whole in constitution-making bodies is discussed in various sections related to establishing the institutions of constitution-making in part 3.