2.7 Adopting and implementing the constitution

Having discussed how the content of a constitution is arrived at, including how the people are involved, we turn to the closing tasks of a process—the formal adoption and coming into force of a constitution, and the process of making a document a reality: implementation.

Adopting turns out to be surprisingly complicated, and may involve a number of separate steps. They are all legally significant steps, but they may be full of symbolism and political significance as well.

Implementation is also a legal process—one of making laws and creating institutions that will have an impact on the country and the way it is governed. But it also is a political issue, and it is a matter of attitudes and will as much as of law.


2.7.1 Adoption, ratification, and promulgation

The most formal acts of decision in a constitution-making process involve accepting the document and bringing it into legal effect. Exactly when the constitution becomes law—when a country can say “this is our constitution”—is surprisingly different from process to process. And before that there may have been a moment when the country could have said “Now no one can stop that document from becoming our constitution.”

We can distinguish various separate acts, not all of which will occur in every process, and which do not have the same legal effect in every process. Here is an imaginary example involving many stages:

  • the constituent assembly adopts the document (adoption);
  • the constitutional court endorses it as respecting the principles laid down in the peace process (endorsement or certification);
  • the people approve it in a referendum (ratification);
  • the president signs the document (assent);
  • the document is published in the national official record (sometimes called the Gazette) (this might be called “promulgation”);
  • the document becomes law (which may be the moment the president signs it, or the moment it is published); and
  • some aspects of the new constitution have legal effect at the moment it becomes law, but the constitution itself says that certain aspects will not take effect for a certain period or until something else happens.

Box 33. Bringing the constitution into effect in Eritrea [1997]: A mistake

Bereket Habte Selassie, the Chairperson of the Eritrean process stated: “It was a mistake not to fix an effective date, or at least specify a maximum period after which the Constitution would come into full force and effect” (Selassie 2003: 312–13).

In some countries one event only occurs: the constituent assembly adopts the document and it immediately becomes law and has effect in its entirety, without the need for anything else to be done. This is more likely to happen in a country without an effective existing constitution. And some countries have more complex traditions on the bringing of laws into effect than others.

Adoption

It would be usual to have a rule that makes the act of adoption perfectly clear—a certain percentage of the constituent assembly or parliament must pass the entire document. Nepal’s interim constitution, unusually, provided only for the preamble and every article to be adopted; there was no procedure for adoption of the whole document. The rules of the constituent assembly say that the preamble will be adopted last, and then a vote must be taken to adopt the whole document. This may turn out to be an unconstitutional provision.

Adoption rules often require “supermajorities,” rather than the usual majority of those legislators present and voting. The support of a number of members equal to more than half of all the seats in the house may be required—or 65 percent, or two-thirds, or even 75 percent. Different majorities may be required for approval of different changes.

Adoption by the constituent assembly could be made the final act—in other words, without requirement of ratification by the people or any formal signature. In a country that is observing the principle of legal continuity, it may be that an act to amend the constitution has to be adopted by the procedures usually followed for passing ordinary laws. This almost always involves the signature of the head of state. But in Papua New Guinea all laws are passed by the parliament alone; the speaker signs a certificate to say that they are properly passed, but is not signing the act into law. Occasionally it may be unclear whether the ordinary procedures apply to adopting the constitution, or whether some special procedure applies.

There may be requirements designed to prevent the rushing of amendments (a source of abuse in several countries); in Ghana there must be two publications in the government Gazette of proposals for amendment, with three months in between, and for certain changes six months’ notice in the Gazette.

Ratification

“Ratification” is a process by which some decision made or act done by one person becomes legally effective by being endorsed by another person. This can be applied to the situation when the people approve a constitution. This would usually be by a referendum or plebiscite. (See part 3.5.) In some countries a referendum on the constitution is prohibited (as in Haiti and Portugal).

Often a referendum would involve a single “Yes” or “No” vote by the whole electorate. If the constitution is for a federal country, it may have to be ratified by the separate vote of each of the states, regions, or provinces. This could involve counting the votes separately for each state in a referendum. But the United States constitution was not effective until ratified by a vote of the state conventions—not the people—of at least nine of the thirteen states. Then the constitution would come into effect—but only for those states that did ratify it. In the end, all thirteen did.

A ratification process will involve something rather like an election campaign, with campaigners for and against the constitution. This is rather different from a public consultation process, because almost certainly it affords little chance to change the document. In the United States process, it was usual for a member of the convention that prepared the constitution to participate in the public debates.

In designing a ratification process, as in designing an election, it would be ideal for the entire country to vote at the same time. In the United States, however, each state organized its own ratification process, and not at the same time as the others. It is hard for later votes not to be influenced by the earlier results; later states may be persuaded to vote “Yes” by an earlier state vote, but equally, an earlier result may affect turnout and distort the later results. (See part 3.4.2.)

Endorsement

In South Africa the constitutional court was required to “certify” that the constitution complied with the thirty-four principles set out in the interim constitution. There may be other forms of endorsement by some body not involved in the preparation of the document. When the secessionist efforts of the province of Bougainville in Papua New Guinea ended, the peace agreement and the (amended) constitution of Papua New Guinea provide for the adoption of a Bougainville constitution by a Bougainville constituent assembly. The Papua New Guinea constitution provided for certain matters to be included in the provincial constitution, and after adoption by the assembly it would be transmitted to the national government. If the national government approved it as meeting the national constitutional requirements, it would ask the head of state to endorse it. It would not come into force until after that.

Consultation with or the approval of some other body may be required; in Ghana, the council of state (an advisory body) must be consulted.

Assent

There may be a good reason for an ordinary law to be signed by the head of state: it happens either because such a ceremonial act has national significance, or because the head of state is given a role in ensuring the constitutionality of laws. In constitution-making the same reasons may not apply. If the people are giving themselves a new constitution as an act of sovereignty, it may seem inconsistent to ask the head of state (who may not even have been elected) to add the final, enacting touch. Possibly the head of state may not wish to sign—if the new constitution will reduce his or her powers. The South African interim constitution said the constitution “shall [which means ‘must’] be assented to by the president”—but suppose he or she refused? The constitution of Portugal also says the president may not refuse to sign a law revising the constitution. There is a legal principle that says “something that must be done will be treated as having been done”—but this is not a particularly satisfactory way of resolving the issue, and courts might be reluctant to apply the principle to so august a person as the president. So some constitution-making processes do not require the signature of any person, or they require every member (or every member who agrees) to sign the constitution.

Promulgation

The word “promulgation” has various dictionary definitions, including the following: to put into force or effect; the official publication of a new law; to make a law publicly known after its enactment; to declare or announce publicly. Historically the only way for people to know about new laws was for them to be publicly announced, if necessary all over the country. Here we use the word to refer to making the law public. Sometimes that may occur in a public ceremony. The constitution will still have to be published.

Coming into effect

In many countries the moment of signature of the head of state is the moment a document becomes a law. But it may not have any legal effect until later, perhaps when it is published in the Gazette (a word used in many countries for the official government publication that announces new appointments, laws, etc.). And the new law itself may postpone its coming into effect until a specific later date, or until something else happens—often until a minister declares that all or part of it comes into effect. It occasionally happens that a law never comes into effect.

Box 34. Adopting, promulgating, and publishing the Kenyan constitution [2010]

The 2000–2005 Kenyan process never resulted in a constitution. The 2008–2010 process was designed with this history in mind.

Parliament was to be able to propose changes, but there was no requirement that its members vote to adopt the constitution. But after the failure to pass and the proposal of amendments, the adoption was put to a vote. It was overwhelmingly adopted—but suppose it had not been? On the correct reading of the law that would not have mattered, but no doubt parliament would have taken the view that it was not adopted.

It then went to a referendum, and was passed. The existing constitution said that “the President shall, not later than fourteen days from the date of the publication of the final result of the referendum, promulgate and publish the text of the new Constitution in the Kenya Gazette.” It was not clear whether “promulgate” was the same as “publish.” The relevant act of parliament said the president must “by notice in the Gazette, promulgate the new Constitution”—which separated promulgation from publication. It also implied that nothing more than a simple Gazette notice was required. If the president did nothing, the constitution would come into effect anyway. However, clearly the president wanted a ceremony.

Many people assumed that the president would have to sign the constitution. But the law did not say that; the last act needed to make it law was the referendum. The president did sign, but he also read out a statement about the constitution and its background, and solemnly waved the constitution toward the crowd—the true act of promulgation in the traditional sense. It immediately became law (oddly enough, in the middle of the day). The constitution was published (with a “Notice of Promulgation”) in the Gazette one week after promulgation.

How about a constitution? If the constitutional change is made by an ordinary law, the usual rule will apply. Or there may be a special provision for amending the constitution that gives a different date. If the new constitution is made by some process outside the constitution, the coming into effect will probably be decided in the new document itself.

Even if some aspects are postponed, it is wise to make their coming into effect contingent on the happening of an event that is bound to happen—or on a specific date—to avoid the risk that they never will come into force. This happened in Eritrea, where the president simply did not bring the constitution into effect even though the document itself said the people “approve and solemnly ratify officially, through the Constituent Assembly, this Constitution as the fundamental law of our Sovereign and Independent State of Eritrea.”


2.7.2 Implementation

Several contemporary constitutions have failed to take root. Either they are early victims of “coups”; they are replaced by new constitutions; or large parts thereof, dealing with both values and institutions, but particularly values, are ignored. There could be several reasons, connected to the characteristics of these constitutions already discussed in this handbook, that explain why large parts of a constitution are not implemented. Broadly, these are:

  • Some of these constitutions address nation-building and state-building; the former cannot be easily achieved without enlightened and committed leadership.
  • Some constitutions aim at a fundamental departure from, rather than merely reform of, existing political, constitutional, and social systems, necessitating new institutions and laws.
  • The scope of the constitution is wide, for the reasons given above, and there may not be either the political will or the technical capacity to address it in its entirety.
  • Some provisions aim to bring about reform of social structures, which goes against the interests of elites and privileged groups.
  • The emphasis on social justice threatens the interests of powerful sections of society.
  • The integrity and anticorruption provisions are resented by politicians and bureaucrats.
  • Many countries do not have a tradition of constitutionalism and the rule of law to anchor a constitution.

In short, unlike the more traditional constitutions, which were not only restricted to systems of government but also imposed on the rulers, contemporary constitutions seek to change state and society and are imposed by the ruled on the rulers (thanks to participatory constitution- making processes and to divisions within the political class). Resistance to implementation is therefore to be expected from several quarters. It is necessary to provide a formal process of implementation and to monitor it.

There are at least two aspects to the implementation of a constitution. One is internal to it, and it involves such issues as the coherence of the document; institutional responsibility for implementation, for example by the judiciary; and provisions addressing transitional matters and the phasing in of the new rules and institutions. The other is external; and it involves such issues as societal attitudes; empowerment of the people; preparing them to participate; internationalization of constitutional values; and the quality of leadership. This chapter is primarily concerned with aspects internal to the constitution.

Implementing, promoting, and safeguarding the constitution

The tasks directed at achieving implementation of a new constitution can be divided into three closely related but to some extent distinct elements.

Implementation

The first involves actions intended to implement the constitution, in the most obvious sense ofgiving full effect to its provisions, which include:

  • setting up new institutions provided for by the constitution, and providing them with the powers, personnel, resources, and general encouragement that they need to operate effectively; and
  • making new laws and policies to give effect to the constitution, and repealing laws inconsistent with the new constitution.

Promotion

The second involves actions intended to promote the constitution, which means going beyond implementation in the first sense, and working to make the institutions and laws operate as the living basis for the way the state operates, which includes:

  • enforcing the constitution and the laws made to implement it, and respecting the rights and freedoms of the people;
  • ensuring that the institutions established under the constitution are properly resourced and otherwise supported;
  • holding regular and free and fair elections (and providing the resources needed to enable them to happen);
  • providing access to justice, and resolving disputes in accordance with the constitution; and
  • facilitating the people’s participation in public and state affairs. (See part 2.2.2.)

Safeguarding

The third involves actions intended to safeguard the integrity of constitution, which goes beyond promoting the constitution, and extends to recognizing its fundamental importance by protecting it in a range of ways, including:

  • limiting the possibility of hasty amendments that detract from core constitutional values;
  • avoiding practices that distort constitutional norms, including an unnecessary resort to emergency powers; and
  • protecting the constitution (in extreme cases) from being illegally overthrown, for example by a military coup.

The three dimensions of implementation are closely related, in that things directed to ensuring that one of them occurs can have positive effects for the other two.

Can a constitution-making process contribute to implementation?

A key question for this part of the handbook is whether there are things that can be done during the constitution-making process that can contribute to successful implementation. With few exceptions, implementation issues received little attention prior to the late 1980s. In the wave of decolonizing constitution-making beginning in the 1950s, for example, it tended to be assumed that constitutions largely modelled on those of the departing colonial authorities would readily be transferred and work as effectively in new contexts in Africa and Asia as they had done in Europe. In terms of safeguarding the constitution, it was assumed that the institutional accountability involved in the separation of powers and in the constitutional jurisdiction of courts (then mainly in common-law countries) was sufficient. The failure of many countries to implement significant parts of their constitutions, the overthrow of others, and the difficulties inherent in implementing and safeguarding the more ambitious constitutions emerging since the 1980s have caused some attention to be given to things that can be done during a constitution-making process, or included in the constitution itself, that support its implementation in the three senses identified above.

Design of the process—encouraging public awareness during and after

As noted in part 2.2, an open constitution-making process that includes a significant focus on increased public awareness of constitutional options and encourages popular participation in discussions of choices can be expected to contribute to increased public knowledge of, and commitment to, a new constitution. People not previously familiar with democratic values and procedures are provided with necessary information and encouraged to participate in public affairs, enforce constitutional remedies, and encourage governmental accountability. An important issue seldom examined even in constitution-making processes that have involved effective awareness campaigns is how to continue programs of awareness of constitutional issues after the process ends. In South Africa, a wide range of well-designed awareness campaigns (involving numerous rural meetings and mass-media campaigns) meant that knowledge of the new constitution was at its peak in 1996. A final step involved the distribution of seven million copies of the constitution in all the official languages. All of this activity was coordinated by a secretariat to the constitutional assembly that ceased to operate once the new constitution was adopted. As a result, the extensive experience of building awareness was dissipated, and there has been limited additional constitutional awareness work since then.

Constitutions often encourage continuing constitutional awareness after the constitution-making process is over, by such means as offering translations of the new constitution into local languages and its wide distribution (e.g., see section 4 of the constitution of the Republic of Uganda 1995, or section 216 of the constitution of the Autonomous Region of Bougainville 2004). The constitution of the Republic of Ghana 1992 goes further, providing for a national commission for civic education to create and sustain awareness of the constitution; educating and encouraging the people to defend the constitution; formulating programs for realizing the objectives of the constitution; and formulating programs for awareness of civic responsibilities. Together with other significant constitutionally established independent oversight bodies, it is now a well-respected institution in Ghana. Most such provisions have limited effect because governments give it low priority and few resources.

Content and language of the constitution—speaking to the people

Both the contents of a constitution and the language in which it is written can encourage

broad popular support for its implementation. A constitution that people see as addressing the real issues leading to the new constitution and providing a vision for the future can really capture their imagination (as Kenya [2010] demonstrates). Other examples are the constitution of Rwanda [2003], the Indian constitution [1950], and the constitutions of Papua New Guinea [1975] and Uganda [1995]. An example of a statement of governance principles directed to resolving ethnic differences is the compact contained in section 6 of the constitution of Fiji [1990].

Constitutional mechanisms for encouraging implementation and promotion

A number of constitutions passed since the late 1980s (and a few made earlier) include provisions intended to encourage and support implementation. One category of arrangements is intended to address most constitutions’ tendency to state broad principles and set directions, and to rely on the legislature later to pass laws establishing new institutions, processes for enforcement of rights, and so on—which may not be passed for many years.

Some specify that particular kinds of laws—usually those needed to establish independent constitutional offices with enforcement, oversight, and similar roles (e.g., human rights commissions, ombudsman bodies, auditors general)—must be passed within a set period. The constitution of Ghana [1992] required that laws needed to establish nine such institutions (including the national commission for civic education, above) had to be passed within six months of the first meeting of the parliament after the constitution came into operation. The constitution of Kenya [2010] includes a schedule of time limits from six months to three years within which laws on more than sixty subjects were to be passed, and provided a right to petition the high court if any law listed in the schedule was not passed within the time specified. (See article 261 and schedules 5 and 6.)

The South Africa constitution[1996] provides time limits within which some implementation laws must be passed (see sections 21 and 23), including implementing rights to information (section 32) and just administration (section 33). But the constitution also includes provisions enabling enforcement of the rights in the absence of implementing laws.

Another approach similar to the latter part of the South African example is found in sections 22, 224, and 225 of the constitution of Papua New Guinea [1975]. Section 22 gives the judiciary the power, in a court case, to make such orders as may be necessary to fill any gap left by the absence of laws. Section 224 requires not only that laws be made providing for powers and procedures, and facilitating the performance of functions, of independent constitutional bodies, but that in the absence of such laws such bodies can provide for any deficiency in their procedures and have all powers reasonably necessary. Section 225 provides that it is the duty of all governmental bodies to ensure that the independent constitutional institutions are provided with the staff and facilities needed to carry out their functions—a requirement that the courts have ruled to be enforceable against the government.

Finally, there are a few examples of constitutions that establish institutions intended to oversee implementation. Perhaps the most far-reaching example comes from section 5 of the sixth schedule of the constitution of Kenya [2010], which provides for a commission on the implementation of the constitution to “monitor, facilitate and oversee the development of legislation and administrative procedures as required to implement the Constitution.”

An example of a body with less-comprehensive implementation responsibilities comes from the lengthy amendments made in 2002 to the constitution of the Papua New Guinea [1975] to give effect to the Bougainville Peace Agreement of 2001. Section 332 provided for a joint supervisory body made up of appointees of the Papua New Guinea government and the autonomous Bougainville government, which is responsible for overseeing the implementation of the peace agreement and the provisions of the Papua New Guinea constitution that implement the agreement.

Constitutional devices to safeguard (and implement) a constitution

Many modern constitutions contain devices for the safeguarding of the constitution that can be divided into two categories. The first involves internal mechanisms to promote its safeguarding in one way or another, the other to build support for safeguarding it from civil society and other sites of influence and power.

Internal devices to encourage safeguarding and implementation

Constitutions often contain provisions directed to encouraging those exercising state power to respect the constitution and accept accountability, including provisions that impose considerable limits on political leaders and administrative officials. Examples include:

Protection of the constitution from coups

Despite the obvious practical difficulties likely to be involved in the enforcement of such provisions, some constitutions make their overthrow unconstitutional (e.g., the constitution of Uganda [1995], section 3). Many call on citizens to protect and defend the constitution. Attempts are made to respond to the threat of security forces overthrowing the constitution by provisions placing the military under civilian control, and in a few cases by provisions giving representatives of the military or former combatants in a civil war strictly limited roles in civilian government (e.g., in the constitution of Uganda [1995], section 78, and the constitution of Bougainville, section 55).

Protection from hasty or damaging amendments

Many constitutions contain provisions regarding the process for constitutional amendment intended to ensure that amendments are not made hastily and are considered with great care. As well as requirements for “supermajorities,” there may be a requirement for lapses of specified periods of time between various stages of the enactment process, or even stipulations that the final stage cannot occur until a general election has taken place.

Limits on emergency powers

Under many constitutions, during a declared state of emergency, laws may be passed and actions taken that would otherwise be contrary to human rights protections, and such emergency powers have often been abused by governments seeking to control the opposition. Modern constitutions often aim to limit abuse of such powers by carefully defining the reasons for declaring emergencies; requiring prompt parliamentary approval of a declaration of emergency; providing parliamentary and judicial scrutiny of exercise of emergency powers; limiting the categories of rights that can be derogated during an emergency; and so on.

Certification of the constitutionality of legislative bills

The government and other authorities placing laws and policies before legislative bodies should be required to certify that in their view the bill or policy—particularly the bill of rights—is consistent with the constitution. This will ensure that questions of constitutionality are placed before the cabinet and other executive authorities and given appropriate attention. It will also alert the legislature to address the constitutionality issue. In the United Kingdom, the requirement for such certification regarding the bill of rights has proved most efficacious.

Judiciary

An independent, impartial, and competent judiciary is indispensable for the enforcement of the constitution and for asserting its supremacy. In civil law states, where judicial review of laws is not possible, the establishment of constitutional courts has been fundamental to upholding the constitution (as in Austria, Germany, Hungary, Poland, and South Korea). In common-law states, the final court, usually called the Supreme Court, has been critical to maintaining and elaborating constitutional principles (as in Canada, India, and the United States). Impunity for corrupt leaders, the result of executive control of the prosecutorial process and the judiciary, has caused major deficits in the rule of law and the enforcement of the constitution.

Independent bodies for accountability and redress, and politically sensitive roles

Many constitutions provide for a set of independent institutions that handle an increasing range of functions where independence from political interference is important. They include bodies with roles in relation to accountability and redress, which often have wide powers (e.g., ombudsman institutions, anticorruption commissions, auditors-general, human rights commissions), and others carrying out politically sensitive roles (such as judicial appointment bodies, public service commissions, and election boundary and management bodies). Independence is protected in a variety of ways, including requiring governments to provide them with staff and facilities (as in Papua New Guinea, above).

Codes of conduct

Enforceable codes (sometimes called “leadership codes”) set strict limits on a range of conduct by politicians and bureaucrats, including conduct that could give rise to conflicts of interest (e.g., Ghana, Kenya, Papua New Guinea, Uganda, and Vanuatu).

Direct democracy

Some constitutions seek to move away from the indirect model of democracy involved in electing representatives who make decisions on behalf of the people, and instead provide scope for citizens to participate directly in decision-making processes. They include arrangements for recall by voters of their elected representatives (e.g., the constitution of Uganda [1995], section 84), citizen-initiated legislation (Switzerland, and some states of the United States), public consultation on policies through plebiscites, and public participation in constitutional- amendment processes through referendums.

External devices to encourage safeguarding (and implementation)

Two aspects of external support for safeguarding the constitution require brief comment. The most obvious involves the people of the country concerned, who should always be the ultimate guardians of the constitution. To play such a role, the people need to be helped to understand the constitution and their rights under it. Encouraging people to play active roles in safeguarding a constitution involves the roles of civil society and social capital more than it does constitutional devices. On the other hand, constitutional provisions can support and encourage popular participation in safeguarding. The constitution can require state recognition of the roles of civil society and NGOs, as with section 15 of the constitution of the Philippines of 1986. Other potentially important provisions include ones guaranteeing popular access to courts and other constitutional bodies for accountability and redress, and provisions for direct democracy.

The second aspect of external support concerns the role of the international community, which since the late 1980s has tended to play a significant part in many constitution-making processes, and often remains involved in supporting implementation in various ways. This often extends beyond support for establishing and operating institutions and laws to various forms of support (direct and indirect) for efforts to safeguard the integrity of the constitution. Of course, there is always a need to balance the value of such support with awareness of political and other dangers of actual or perceived international interference in sensitive domestic affairs.