2.3.14 Dealing with problems in the process

The path of constitution-making rarely runs smoothly. Indeed, only around 50 percent of processes result in the adoption of a new constitution.

We can look at these problems from several perspectives: Why? How? And (perhaps) when? We should also recognize that not every “failure” means that the process has been a waste of time, and that there may even be situations in which “failure” is not the right word at all for a process that does not end in a new constitution. For example, it may be possible to reach a settlement of the issues dividing a country by nonconstitutional means.

Why processes come to a halt

Processes come to a halt for a variety of reasons:

  • Government officials or others in powerful positions are simply opposed to a new constitution.
  • It has proved impossible to reach agreement on contentious issues between parties.
  • It proves impossible to produce a document that the people will accept.
  • Those involved have such a personal stake in extending the process that they are able to drag it out until there is a new government, or the money runs out.
  • War or an insurgency commences or resumes.
  • It is decided that other approaches—such as a gradual process of lawmaking or amendment— can achieve the objectives.

The last is more likely to be a consequence of “failure” rather than a cause—it will probably result from one of the other “whys” on this list.

How processes come to a halt

Here we are concerned with the mechanisms or processes by which the constitution-making process grinds, or shudders, to a halt.

  • A document is rejected in a referendum (a process that may be genuine popular reaction or the result of political, personal, or ethnic manipulation).
  • The money runs out.
  • Politicians refuse to play a constructive part in the process.
  • Other things (such as a constitutional assembly needing to act in its other role as legislature, political wrangling, wars, or natural calamities) delay matters so that patience is exhausted, deadlines are missed, money runs out, and so forth.
  • Those with the power to do so call a halt to the process by, for example, disbanding a commission.
  • An interim constitution is amended to become a permanent or long-lasting document.
  • An election removes from power those with an interest in continuing the process.
  • A coup has the same result.
  • The courts are used to declare that a process is inadequate or a draft constitution does not meet certain standards or requirements.

When processes come to a halt

This may happen at almost any stage (and the stages vary from process to process).

  • In Pakistan the constituent assembly met only a few times and adopted a resolution setting forth its objectives (1949), but did little else because of political instability, and was ultimately dismissed by the head of state (1954).
  • In Israel the constituent assembly turned itself into the parliament (Knesset) and put the constitution-making on hold because of the invasion by the Arab states immediately after the declaration of the state of Israel. It later proceeded to make a constitutional structure by passing different pieces of legislation over the years.
  • In Nepal in 1951 a constituent assembly was never set up; the interim constitution was amended so that it provided for all that was necessary to run the country, and it lasted for eight years—because the king lost his commitment to a process of constitution-making that involved the people.
  • In Kenya, a court, in a decision rendered immediately after the national constitutional conference had adopted a draft, which was supposed to go to parliament for enactment or rejection as a whole, held that the process used to adopt the draft constitution was invalid, and that there must at least be a referendum. This gave the government the chance to take over and amend the draft—but it was unable to win the subsequent referendum [2005].
  • In several countries (e.g., Zimbabwe [2000]) a constitution has been completed and then rejected in a referendum.
  • In Nigeria in 1966 a conference of “leaders of thought,” set up to discuss a new constitution, was aborted within months because of the threatened, and ultimately real, attempt of part of the country to secede, and the consequent three-year civil war.
  • In Eritrea [1997], the constitution was completed, but it required the signature of the president to come into effect (which is true in many cases). The president failed to sign it for some time.

So sometimes processes have been aborted when little progress has been made, while in other cases progress was halted when there was already a draft, or even a complete constitution ready to be put into operation. Sometimes it is not possible to avoid the abortion of the process; the cross-references indicated above will lead the reader to discussions of preventive or remedial measures. And in part 2.1.10 we discuss briefly issues concerning restarting such stalled or aborted processes.

It is beyond the scope of this handbook to discuss one of the most common types of failure of constitution-making processes—that is, the failure to bring the constitution fully into effect. This may be an almost wholesale failure to do anything that the government finds inconvenient, as was the situation in Eritrea even after the president belatedly signed the constitution into law. (This was attributed by some to a failure to include a date for its becoming operative, but others believe this would have made no difference.)

More often, the problem arises from the failure to pass laws that in theory the constitution requires. In Papua New Guinea, although the constitution, passed in 1975, requires the passing of an “organic law on the integrity of political parties,” no such law was passed until 2001.

Most implementation failures result from corruption or incompetence on the part of courts and parliaments, a lack of resources, or the failure of the people to make active use of the implementation provisions that do exist. No constitution is self-executing; each one requires the people to use their votes wisely, to go to court, to complain or to petition, and to refuse to participate in the subversion of the constitution.

Finally, we should note another type of failure: one in which a constitution is adopted and comes into force and then is overtaken by a coup or a civil war or some similar cataclysmic event. These events likely lead to the constitution being consigned to the dust-heap, whether by being suspended or abrogated or being so totally disregarded that it might as well not exist. Nigeria amended its 1960 independence constitution in 1963. There was a coup in 1966; various attempts were made to produce a new constitution, which were largely thwarted by a civil war and other coups until a new constitution was adopted in 1979; this was overthrown by a coup in 1983; a new constitution was adopted in 1989; this was ended by a coup, and yet another constitution was adopted in 1999. Fiji’s 1997 constitution has had the novel experience of being “couped” three times: in 2000, then restored as the result of a court case in 2001; modified and partly suspended by a supposedly “proconstitution” coup in 2006; and abrogated as a response to a “constitution-restoring” court decision in 2009.