3.1.1 Introduction

The bodies discussed here are mostly fairly large, and they are often charged with a number of functions: educating the public, collecting views, developing guiding principles, and drafting and adopting a constitution. (Some perform only a few of these roles.)

The distinctions among the various bodies are also not precise. A national legislature has a clear role. But a constituent assembly may also be a legislature. And the boundary between constituent assemblies and national conferences also is not a clear one. In this section we consider constituent assemblies and national legislatures together. National conferences, a phenomenon largely found in francophone Africa, are addressed separately.


3.1.2 Constitutional assemblies

Here we discuss bodies that fit this following broad description: a body designed to represent the nation, assigned—at a minimum—the task of debating in detail a draft constitution of the country, and of approving that draft. It may or may not also have the task of preparing the firstdraft, or have the final responsibility for passing it into law. We use the phrase “constitutional assembly” here because it is wider than the phrase “constituent assembly.” We include “regular” legislatures that are responsible for a new constitution or constitutional revision. If a comment applies specifically to legislatures, we make that clear. Comments that relate to “constitutional assemblies” apply to any representative body charged with making or revising a constitution.

The significance of the common phrase “constituent assembly” is that it refers to a body representing the people that is vested solely (or mainly) with “constituent power.” A Nigerian constitutional authority, B. O. Nwabueze, wrote “[Constituent power] is a power to constitute a frame of Government for a Community, and a Constitution is the means by which this is done. It is a primordial power, the ultimate mark of a people’s sovereignty” (Nwabueze 1974: 292). In some countries it is assumed that the people’s constituent power can be exercised by parliament; in some the tradition is that a separate body is required, and usually such a body does not have the power to make ordinary laws; the parliament alone retains that role. But views may change—especially because of the highly political atmosphere that often surrounds constitution-making. A Kenyan court in 2004 decided that a new constitution could be made only by a directly elected constituent assembly, or possibly a parliament elected for the purpose; failing this, a referendum was required—which was a highly questionable decision.

We can compare the main characteristics of a constitutional assembly and a parliament:

There is no single model of constitutional assembly, and it is not really possible to say that certain minimum requirements define such an assembly. Even names vary; many combinations of the words “constituent” or “constitutional” with such words as “assembly,” “convention,” “congress,” or even “conference” have been used to name (and describe) bodies whose primary responsibility is to change or make the constitution. In some languages there is no distinction between “constituent” and “constitutional.” But in languages that do have both terms, “constituent assembly” has a particular appeal because it implies that it is the people’s representatives who make and adopt the constitution. In Germany this phrase was rejected and “parliamentary council” was used—one of several measures designed to make it clear that it was not the final constitution for a united Germany that was being prepared.

Constitutional assemblies differ in size and composition and in how their members are chosen. They also vary in their roles, although they must at least discuss and adopt a constitution. Some are national bodies preparing a national constitution, while others are subnational bodies—such as the body that prepared the Bougainville constitution [2004], the Kashmir constituent assembly of [1956], and the assemblies of the individual states of the United States.

Legislatures and assemblies: The relationship

Possible relationships among special constitution-making bodies and “ordinary” legislatures are these:

  • There is no “regular” legislature at all, and all efforts are focused on the constitution-making process through the constitutional assembly.
  • The regularly elected legislature alone has the task of constitution-making or revision (and it is not elected specifically for that purpose).
  • The legislature is chosen by elections in which the constitution is the only or a major issue, and it has the task of making the constitution.
  • The legislature is also the “constituent assembly,” though it is analytically two separate bodies (e.g., as in India, Nepal, Papua New Guinea, and South Africa).
  • All the members of the legislature are members of the constitutional assembly but there are also other members of the constitutional assembly, and the two bodies sit separately; the regular legislature as such has no role in connection with the constitution.
  • All the members of the legislature are members of the constitutional assembly, but there are also other members of that assembly, and the two bodies sit separately. The regular legislature also has a role in connection with the constitution (as in Kenya [2005]).
  • There are two completely separate bodies, with no (or no significant) overlap in membership, and the regular legislature has no role in connection with the constitution (e.g., Bolivia and Uganda).
  • There are two completely separate bodies, with no (or no significant) overlap in membership, and the regular legislature does have a role in connection with the constitution.

If there is both a legislature and a constitutional assembly, each of which has a role in the constitutional process, how are these roles divided? The role of the legislature may be limited to forming the assembly and other organs of constitutional review. But the legislature may insist on having the last word (or a later word). So the constitution adopted by the assembly may have to go to the legislature for further approval (as happened in Kenya in [2005]). This is an unsatisfactory arrangement: if the assembly is inclusive, it is odd that its product should then go to the less-inclusive legislature. And if, as in Kenya, the members of parliament are also members of the assembly, they may be tempted not to engage in that body because they will have the chance to decide on the constitution later, in the legislature.

If one body operates as both legislature and constitutional assembly, how is the difference marked, if at all? In Ceylon (now Sri Lanka) the constituent assembly sat without a mace, the symbol of royal (governmental) authority. The two bodies could sit in separate places, but this would create logistical problems if both needed to sit on the same day. A different person might preside. The session for each might be marked by its own formalities—separate prayers, for example. The rules of procedure might be slightly different—but it would be hard to make them significantly different for similar types of activity. There is a good reason for having more demanding quorum rules for the constitution-making body.

In Nepal [ongoing process] the interim constitution provided for a committee of the constituent assembly to carry out the legislative work. The motive was to prevent the work of the constituent assembly being held up because the parliament needed to meet. However, this was never brought into effect. It seems there was an unwillingness to leave the parliamentary work to a committee. There were twenty-five parties in the assembly and all would want to be in the parliament, yet some had only one member.

Box 36. The nondeliberative constitution-making role of parliament

Parliament may have—or give itself—functions in relation to the constitution-making process other than debating the contents of the constitution. It may well have passed the laws setting up the process. It may have a role in appointing members of a constitutional commission. It may have to vote the necessary resources for the process. It may insist on overseeing the process, even if it cannot control it. In Kenya from 2000 to 2004 and again from 2008 to 2010 the legislature established a select committee that carried out these roles. The committee was important if amendments to the governing legislation had to be passed. Its makeup reflected the party composition of the parliament. In 2008–2010 the committee was also given specific roles by law (including decision-making roles about the content). The Somali process that began in 2009 emulated this model, but the role of its parliamentary committee was unclear.

Arguments for and against separating the legislature and the constitutional assembly

A constituent assembly may be seen as representing the people’s sovereignty. It may also be seen as a way precisely of ending legal continuity, marking a break with an autocratic past, or having a genuinely “home-grown,” or autochthonous, constitution rather than one that owes its legitimacy to its colonial history (as in Papua New Guinea [1975]). It has been argued that it is better to have a constituent assembly, which is somewhat different from the ordinary legislature, make the constitution, precisely because it is not the ordinary lawmaking body and does not have the same vested interest in the document that is to be drawn up; it should not “act as judge in its own cause.” This benefit will disappear if the constituent assembly turns itself into the legislature under the new constitution (as in Timor-Leste [2002], for example). When there is significant distrust of politicians and parties, a separate constitutional body may have greater popular support (for which reason politicians may not be prepared to go along with such an arrangement).

Box 37. South Africa: One body, two roles

Under the interim constitution, elections were held for a parliament that was also the main constitution-making body. That election was an important milestone; it was the first time most people had voted. It would have been impossible to produce a separate, more legitimate body to deal with the constitution.

This had other advantages. All the newly elected MPs could be involved in constitution- making. Only one secretariat was involved, and only one building needed. It has been observed that although the African National Congress was the dominant party, “the executive did not control the process, as it might have in an ordinary parliament.”

What are the arguments against separating the legislature from the constitutional assembly? Time and expense are clearly relevant; almost certainly a special assembly will take longer than some sort of expert commission process, and probably even than a regular legislative review (although these can also be slow). It will almost certainly be more expensive than if it is parliament that has the role.

From the perspective of interested groups, one disadvantage of a special assembly is likely to be its unpredictability. People who commit themselves to a constitution-making process would like to be able to predict the outcome, in the sense of the constitution they will produce. The more “popular” the composition of an assembly, the less predictable it is likely to be. Designers of the assembly may try to make it more predictable—by bringing in members through political parties, by limiting the voting possibilities of members, and through the internal structures and rules of the constituent assembly. Results of such efforts cannot be guaranteed. Even party discipline may collapse; in the Kenyan National Constitutional Conference it proved impossible for parties to control their members, as ethnic considerations dominated.

Various constituent assemblies have exceeded their mandates. Jon Elster has written:

[T]he [U.S.] framers ignored the instructions from the Continental Congress on three crucial points when they decided to write an entirely new constitution, to seek ratification by state conventions rather than state legislatures, and to require ratification by nine states rather than by unanimity. In France, the constituent assembly decided to ignore the instructions of their constituencies with regard to both the voting procedures and the King’s veto. In Germany, finally, the constituent assembly successfully insisted on ratification by the state legislatures rather than by popular referendum. The German framers also managed to resist some, although not all, of the decentralizing instructions that the Allies had given them (Elster 1995: 375).

Bodies in some processes have been hybrids: legislators are members of the constitutional assembly, but there are many other members. This may seem to be a reasonable compromise, but has its own problems. If the parliamentarians are many, it may be impossible for both bodies to sit at the same time, which may seriously hold up the constitution-making process. They may also have influence greater than their numbers would suggest, raising risks of use of such influence for their own benefit.

Legal status of assemblies

In revolutionary or transitional times, the “legality” of assemblies convened according to the rules set forth in a previous constitution may be doubtful. American commentators have argued

about whether the actions of the constitutional convention were “illegal” and therefore reflected the founding of a new legal order. The French constituent assembly came into existence to raise revenue for the French king. But as the existing system fell apart, it transformed itself into a constitution-making body. Even in this, revolutionary, case, the body itself was convened by the existing authority. In some situations of constitutional crisis, or even vacuum, constitutional assemblies have been brought into being by actions of outside forces, whether in the form of occupying powers, such as the victorious countries occupying (West) Germany after World War II, or the United Nations in Cambodia [1993], or the United States in Iraq [2005]. In Vanuatu [1980], members of the various local parties formed their own constituent assembly, without any formal legal framework, and proceeded to make a constitution. It was accepted by the colonial powers (France and Britain) and became law.

The South Africans, as mentioned earlier, wanted to preserve legal continuity. So the 1993 interim constitution and the final constitution were made by and according to the procedures of the parliaments of the time.

Other assemblies have come into existence in more “normal” times, and have been formed by existing authorities for the specific purpose of making a constitution. Those authorities might be the ordinary legislative process (as in Kenya in the later 1990s) or military authorities (as in Nigeria in 1977 and 1988). In those circumstances it is perhaps easier to design a process and a structure for the assembly. But it is probably rare that a constituent assembly is formed without great pressures from contending forces, even if those forces are not at war. In fact, in less- fraught constitution-making circumstances, perhaps a special constitutional assembly is a less common way to make a constitution. Among the constitutions made or amended in recent times in noncrisis circumstances are those of Finland, Sweden, and Switzerland, where changes were made by the ordinary parliament. This may also reflect national traditions—though Switzerland’s individual cantons do sometimes use constituent assemblies to make their cantonal constitutions.

For the purposes of this handbook, we assume that the important consideration for constitutional process designers will be whether the constitution is acceptable to the nation, something that is likely to depend more on its content and the process of making it than on legalistic arguments about its foundations.

Design

This book is written for those who do have a chance to plan, and there are some lessons that can be learned from the past. At the least, it may be useful to have a checklist of aspects of assembly design. Some main objectives of rational constitutional assembly design are:

  • legitimacy in the eyes of the public;
  • a body that acts on the basis of its perceptions of public interest and not of self-interest (of its individual members, of itself as an institution, of the parties or groups from which the members come or that they represent); and
  • a body that has the necessary competence (including having access to necessary technical assistance).

A purist view would be that a true “constituent assembly,” as the embodiment of the sovereignty of the people, ought to have the entire constitution-making power, subject possibly to the requirement of a referendum. In reality many assemblies have done far less. Past assemblies, on a continuum from widest to narrowest range of functions, include those in table 8.

There is no “right” set of tasks for an assembly. But there are a few considerations that may be helpful in planning those tasks.

On “civic education” (see part 2.2.2), the constitutional assembly may itself need to be educated about its task, and may be poorly equipped to educate the public. And the sort of human, logistical, and other support that the constitutional assembly will have available may not be adequate for the task. However, in South Africa the assembly did take on this role effectively by having its administration hire and train a team of civic educators.

Whether a separate commission or other body should prepare a draft is much debated. One can argue that the people’s sovereignty would be better expressed if the constitutional assembly were to carry out both these operations, because the document prepared in the first stage will almost inevitably impose some restraints on the contents of the final document. If a first draft, prepared by another body, takes account of public opinion, and the document is then revised by a constitutional assembly, it will be, in theory, the outcome of two quite different processes of ascertaining public sentiments (and, if it then goes to a referendum, of yet a third). If the first draft is prepared before the constitutional assembly sits, then one would have to ask when the “political bargaining” would take place: with the drafting commission, or left until the constitutional assembly, in which case is it public or behind the scenes?

Table 8: Functions of constitutional assemblies

Countries Functions
Afghanistan [2004] Approving with little discussion a draft that then requires further act of adoption
Cambodia [1993]; Timor-Leste [2002] Carrying out or supervising the whole process designed by others from draft through promulgation
Nigeria [1979, 1999]; Kenya [2005] Thorough debate on the existing draft, with freedom to change it; further act of adoption by another body
Uganda [1995] Thorough debate of existing draft, but needing supermajority to amend draft; final act of adoption by another body
United States [1787]; India [1950]; Bolivia [2009] Preparation of draft; then full debate; further act of adoption or promulgation required
Vanuatu [1980]; Namibia [1990]; Nepal [ongoing process] Designing the whole process (other than formation of the constituent assembly, and the adoption process) and carrying it out from public consultation (if any) to draft to promulgation

If there is no other body, the assembly may have to be charged with responsibility for public consultation and provided with the necessary staff members. However, this may be a task that an assembly is not well equipped to carry out—the task requires special expertise, including perhaps computer programmers and data entry personnel. (See part 2.3.4 on the personnel needs of a process.) And, especially if the assembly is also the parliament, or parliamentarians are also members, it may be undesirable for them to conduct public consultation meetings: some of the issues the public wants to raise may be concerned with the competence and commitment of legislators generally, or even the particular members at the meetings, and the public would naturally feel hesitant to speak freely.

Size

Constitutional assemblies have a tendency to be large, often too large, though they have varied widely. (See table 9.) If dissatisfaction with parliament is one reason for having a constituent assembly, it will often be felt that representing the whole people requires a larger body. If, as in Kenya, parliamentarians are members of the assembly, the latter must be larger, and there it was decided that others should outnumber members of parliament. Realistically, if a section of society has one member it may feel some sense of satisfaction, but is unlikely to be able to influence decision-making at least by its voting force (except perhaps if a two-thirds vote is on a knife-edge, or if unanimity is required at some point). But there is another role than that of voting: articulating the issues of the various sectors of society.

Large bodies are hard to control. Decision-making is difficult, even in committees because they will also be big, unless they are numerous (in which case providing secretarial and other assistance and keeping track of what the committees are doing will be hard). With large bodies, there is more risk that members will make rhetorical speeches rather than contributions of substance.

Size will be less of a problem if the function of the constituent assembly is mainly to endorse a document prepared elsewhere (such as Afghanistan’s Constitutional Loya Jirga); the body will not really have to understand the document in great detail. Most constitutional assemblies are expected to discuss the issues in detail, and even those that are not expected to may insist on doing so.

Membership

A dilemma in constructing any constitution-making body is how to balance the wishes of the people with those of the political classes, especially of political parties. After or during periods of conflict parties may not really represent the people, and the role and control of parties may be an issue in constitution-making. Political parties have interests as parties, and politicians as politicians.

On the other hand, there is a risk that a constitution that is adopted without being accepted by politicians, and even by the organized parties, will not work. A good working relationship between the politicians and the people is essential, and the final document will probably be a product of compromises between these two groups, as well as among other groups in society.

If the legislature is the constitution-making body, it will be composed according to the usual procedures (though if it is elected with a view to constitution-making, the election results may be slightly different than those in regular elections). If the constitution-making assembly is quite separate from parliament, it may seem pointless to use the normal election method, and permit the parties to campaign in the usual way—the composition of the assembly will probably largely mirror that of parliament. However, different people might be interested in standing for elections.

The composition of various constitutional assemblies is shown in table 9.

This shows that some assemblies have been designed to represent the people, sometimes to the exclusion of traditional politicians (who may be otherwise occupied with the regular legislative business, in a separate body). The categories of “people” include, and indeed often emphasize, those marginalized in the past; their demands may be the very basis of the assembly process, as in Bolivia and Nepal. One problem with such a basis is that new groups tend to emerge, demanding their place in the assembly. This was true in Nepal, where the interim constitution had to be amended to make the membership more comprehensive, and the selection process correspondingly became more complex.

Election and selection of members

Assembly members (other than regular legislators) may be chosen by:

  • direct election by the people;
  • indirect election by existing political bodies such as local government councils;
  • election or selection by bodies, not necessarily normally politically active, that would not usually choose representatives to a legislature (such as civil society or parties—other than in a party-list system—or even an individual such as a king); or
  • omination by the chair of the assembly, or some other person or body, for reasons connected with the makeup of the body and its expertise or to repair shortcomings in its representativeness.

The arguments for and against direct election include the following:

For:

  • it is democratic;
  • it can lead to fair representation; and
  • it is likely to be acceptable to people.

Against:

  • it is expensive and time-consuming;
  • if the electoral system is faulty (this may be one of the issues to be decided when debating the new constitution), the assembly may not be representative and may have an interest in preserving the faulty system;
  • it may be dominated by political parties;
  • people of competence and integrity may be reluctant to stand for election (or parties may not accept them); and
  • elected members may feel compelled to stick to their mandate and be less prepared to compromise.

Many assemblies are made up by a combination of methods.

Table 9: Composition of constitutional assemblies

Country and body Composition Population of country Assembly size Women
Bolivia [2009] Constituent Assembly Directly elected 9 million 255 35%
Bougainville [2004] Constituent Assembly Members of two existing governmental bodies, 36 in the Interim Bougainville Provincial Government and about 100 in the Bougainville People’s Congress 185,000 136 8
Ecuador [1998] Constituent Assembly Directly elected members 12 million 90 28.5%

Ecuador [2008] Constituent Assembly

Mixed system of some members representing provinces (100) and some citizens overseas (6) and also party lists (24)

13.7 million

130 34%

Eritrea [1997] Constituent Assembly

105 members of the legislature; the rest elected by regional assemblies or selected from representatives of Eritreans abroad

3.2 million

527 30% quota

France [1789] Constituent Assembly

291 deputies of the clergy, 270 of the nobility, and 584 of the Third Estate 28 million 1,145 0
Germany [1949] Parliamentary Council Indirectly elected (state legislatures elected some of their members) 50 million 65 About 4
India [1950] Constituent Assembly Mainly elected by provincial legislatures 345 million About 300 About 15
Kenya [2005] National Constitutional Conference All members of parliament (222): 3 elected by each district council; (no more than one councillor, at least one woman); 126 chosen by civil society; 1 member from each registered party; 13 nominated by chair to represent other aspects of society; constitutional commission members (29) 31 million 629 About 136
Nepal [ongoing process] Constituent Assembly (Constitutional Assembly in Nepali) 240 members elected by first-past-the-post, single-member geographical constituencies (2 of those elected were nonparty candidates); 335 elected on party-list system; 26 nominated through party-based consensus 26 million 601 197
United States [1787] Constitutional Convention Elected or selected by individual states 4 million 55 0

Box 38. Members’ active participation

The Kenyan constitutional commission looked at the contributions of different types of members to plenary debate. In quantitative terms they found that members of parliament made a somewhat smaller contribution than their numbers would suggest, while members of the commission that prepared the constitution draft that formed the basis of discussion contributed significantly more. Only 61 percent of the members of parliament spoke at all, while 91 percent of NGO representatives did, as did 89 percent of representatives of religious organizations. Only 46 percent of those appointed to represent “special interests” did so. These figures probably reflect the lack of belief on the part of many members of parliament that the process would lead anywhere, and the much greater commitment of civil society and district representatives. It was probably a mistake to include members of the drafting commission in the constituent assembly—they did not have a vote, but some had considerable influence over thematic committees.

It has been argued that, whatever the usual electoral system, broad representation of the people in the constitutional assembly would be best achieved by a list system of proportional representation, with a low threshold, to ensure that even small parties are present. In some countries a national proportional representation list system has been adopted (in South Africa, for example), or a list system but using smaller constituencies (as in Namibia). The system adopted for the Nepal constituent assembly was a mixture of single-member geographical constituencies (240 members) and party lists (335 members). It did not rely on the natural tendency of proportional-representation systems to be more inclusive (because people did not trust the political parties to be inclusive in their selection of candidates) but imposed rigid requirements in terms of gender, caste, and ethnicity for the lists and the seats. In Bolivia a party could not necessarily hold all three seats from a district even if it won sufficient votes to do so: if there was another party with at least 5 percent of the votes in the district, it would take the third seat. This was designed to protect small parties. But proportional representation systems do give a great deal of power to political parties.

However, some assemblies have included members drawn from lists not put together by parties. For example, half the lists for the election to the Geneva constituent assembly established in 2008 were party lists, with the other half being lists of people with particular interests (such as homeowners, women, and retired people), including one list put together by a federation of 480 local organizations of all sorts). It is common for a proportional representation list system to provide that a party will only have any members elected as members of parliament if it achieves a certain threshold percentage of the votes cast—at least 1, 3, or even 7 percent. The aim here is to prevent fringe, even extremist, parties from winning seats. But the threshold might be lower for a constituent assembly precisely in order to encourage inclusion of a full range of national interests.

Entitlement to vote in an assembly may be wider than for parliamentary elections. In Eritrea some members of the assembly were elected by Eritreans abroad (though in some other countries, claims by the diaspora of the right to vote have been rejected). Afghans in refugee camps in other countries were also to vote for the Constitutional Loya Jirga. In the case of a country emerging from serious conflict there may be many exiles, but tensions can exist between exiles and those who remained. In Kenya a court held that prisoners could vote in a referendum; they were debarred from voting for parliament. A similar possibility might exist for voting for a constitutional assembly—depending on the words of the existing constitution; if there were no constitution, an expansive view of the right to vote might be possible.

Some other selection process by civil society has been used in a number of constituent assemblies, including Afghanistan [2004] and Kenya [2005]. There are risks in such a system, including those of undue influence or even bribery in “small-circle elections” resulting in new sorts of distorted representation. But if the alternative is that elections are exclusively dominated by unreformed parties, this may be a risk worth running, and in a system where civil society is genuinely responsive to society those risks may not be realized.

Nomination of a small number of members could be designed to bring in representatives of groups and sections of society that are underrepresented or individuals whose experience will add weight to the deliberations or legitimacy to the body. Such a nomination could be made by the chair of the body (as in Kenya, where the chair used the power to appoint some persons from the business sector, including media). But in some instances the chair is not identified in advance. It could be by agreement among parties, as in Nepal, but there the parties to some extent undermined the understood purpose (to bring in expertise without regard to party affiliation) by sharing out the slots among the major parties and not necessarily using them to bring in experts.

Relatively few countries make voting a legal duty. It has been suggested that, even in a country with a practice of compulsion, this should not apply to elections for a constituent assembly. But in New Jersey in 1966 only about 3 percent of the voters voted for the constituent assembly members, which rather makes nonsense of the idea of people’s participation.

Campaign

If public funding is usually available for election campaigns, arguably it should also be available for campaigns for election to the constituent assembly. But there may be many nonparty candidates in such an election. It has been suggested that there should be a publicly financed information sheet to educate the public about all candidates. A few countries have banned separate party rallies and campaigning, providing only for joint, publicly financed election meetings (e.g., Tanzania in the one-party state period). That plan might be worth considering for elections to constitutional assemblies.

Federations or federating countries

Indirect elections (usually by a lower-level legislature) are common in federating countries, as in the United States at the time of the constitutional convention, and to some extent in India in 1946. The shortcomings of this approach are that:

  • it may make the assembly a process of bargaining among units and not a process of the people; and
  • it may mean that the assembly mirrors distortions in the makeup of the federal state—the very distortions that may be involved in the disputes underlying the demand for a new constitution.

Should representation of units be based on equality or population? The former favors smaller units. Issues of representation should be looked at in the light of voting arrangements, among other things: what number of votes is needed to carry a motion and what number is needed to block one?

Qualifications of members

One might argue that to make the assembly as representative as possible there should be no requirement other than being a citizen, and perhaps a registered voter. Some countries might consider allowing members of the national diaspora to be members of the assembly, even if they are not citizens. They may have left the country against their own wishes, under oppression or conditions of insecurity, and may not have given up aspirations to return to it.

Qualifications imposed in actual cases have included Nigeria’s requirement in 1977 that members be “indigenes” of the state they represented (meaning that their tribe is one that “belongs” in the state). Nigeria excluded traditional paramount rulers in 1988. Both Nigeria and Nepal (2007) excluded current public servants, and Nepal precluded payment to anyone from government funds. Nigeria in 1977 and 1988 required that a person have paid taxes for the previous three years (which might discriminate against women); while Nepal excluded anyone owing the government money. Nepal’s concern to exclude the corrupt led it to bar anyone convicted of crime involving “moral turpitude” or corruption, or of any electoral offense in the previous two years. It went to the extent of barring those blacklisted (under law) as defaulters to banks. And Nepal also barred those under twenty-five years old—thus excluding the voice of youth.

Having a large number of candidates can be confusing for voters. Requirements to show a certain level of support may reduce those numbers. In Nigeria in 1977 the number required was

ten. In Nepal in 2007 only a proposer and seconder were required. Another device for discouraging frivolous candidature is to require a financial deposit. In Nepal an individual standing for a geographical constituency had to put up a deposit of 3,000 rupees (about $45 in United States dollars) and a party putting forward a list for the proportional representation election 20,000 rupees (about $300).

Experts as members?

Elster has suggested that experts should not be members because the constitution should be the outcome of bargaining between the representatives of the people, rather than an expert affair: “Lawyers will tend to resist the technically flawed and deliberately ambiguous formulations that may be necessary to achieve consensus” (Elster 1995: 395). But experts have the same right as any other citizens to stand for election, and this exclusion may produce a distortion of expertise. Some countries have provided for specific seats for persons with certain expertise, while in many others some members will have expertise, with lawyers often being prominent. In India political parties sought to ensure that some leading experts were included in the constituent assembly.

Nonmembers with special relationships

In Kenya [2005], certain observers were permitted to attend, and to interact with members informally during breaks. These were drawn from civil society, and were selected by a committee (from thousands who applied). One principle was to allow groups that had important potential input, but were not formally included in the assembly, to be present. The observers could attend plenary sessions (as could other members of the public) and were assigned to relevant committees (unlike members of the public), but could not speak or vote in either. Twenty-eight organizations were also accredited, which meant they could lobby members, distribute literature, and hold meetings on the grounds of the constituent assembly.

In other contexts, government observers have also been included—perhaps unwisely. In Afghanistan [2004], constitutional commission members who prepared the draft were included as observers along with the transitional cabinet and the heads of the judicial and human rights commissions. They did not have the right to vote or express an opinion unless they were asked a question by one of the members of the Constitutional Loya Jirga.

Payment of members

If constitutional assembly members already hold paid public positions, perhaps as legislators, there is little reason to pay them more for their constituent assembly roles. But in some countries legislators are adept at claiming allowances for everything they do. People who otherwise would not be paid, or not paid much, would have a legitimate claim to be paid for this public service. Ideally, salaries should not be fixed by the members of the constituent assembly themselves. This could lead to abuse, discrediting the assembly.

Structure of the assembly

It seems unnecessary to have a second chamber for a purely constitution-making assembly. It is meant to represent the entire people, and it does so in one chamber. Conflicts with any other body should be avoided. The one purpose that a second chamber could serve would be to prevent a body that is otherwise not subject to any realistic constraints from straying beyond its mandate. To be able to do this, the second chamber would have to have great public legitimacy—which might falter under the strain of disagreement.

Committees

It is common for much of the work to be carried out in committees. In addition to committees to discuss substantive issues, there will probably be some addressing administrative matters. Some may resemble the committees often found in legislatures (on the discipline of members, for example). Others may be needed because the assembly is a new body without an existing structure. For example, there may be a committee concerned with the welfare of members, their housing, transportation, and so on. And the special nature of the work of the assembly may necessitate special committees such as those on civic education, the collection of views, and the education of members. Committees have included:

• a capacity-building and resources-management committee and a committee for public opinion collection and coordination in the Nepal process; and

• a staff and finance committee, a credentials (members’) committee, a house committee (concerned with housing, library, and other facilities), a press gallery committee, a steering committee, and an order of business committee (to plan the future course of the constituent assembly) in the Indian assembly.

How should topics be assigned to committees? Sometimes the structure of the existing constitution may be used as the model. This has the disadvantage that the structure of that constitution may be dictated by that of the old, because of the committee structure. Sometimes the committee structure closely reflects national concerns, as it did in the Bolivian constituent assembly, which included committees on “education and interculturality,” “hydrocarbons, minerals, and metallurgy,” “water resources and energy,” “integrated Amazon development,” and “coca.”

The South African assembly was divided into the following committees:

  • Committee I—Democratic state (preamble, citizenship, equality, supremacy of constitution, elections, freedom of information, accountability, separation of powers);
  • Committee II—Separation of powers, legislative procedures, constitutional amendment, structure of government at different levels, legislatures, electoral system, traditional leaders, executive;
  • Committee III—Relationships among levels of government;
  • Committee IV—Fundamental rights;
  • Committee V—Judicial and legal systems; and
  • Committee VI—Public administration, financial institutions, transformation, security services.

The following criteria might usefully be borne in mind:

  • Committees should be no larger than about thirty members if the benefits of having a smaller body are to be realized.
  • Though it is useful to have expertise in committees, it is not practical to give members a free hand to choose their own committees—committees will become uneven in size. Also, it is often important to have nonexperts on committees as well as experts; the whole idea of a constitutional assembly is to have the people’s voice, rather than only experts, involved).
  • The membership of committees should be balanced in gender, ethnic, and other terms, if possible.

If parliament is in charge of the process, the committee structure may be different. Parliament has many other functions to perform, and other committees will exist. Parliament may therefore decide not to assign all its members to the constitution-making process, but to set up one committee with that responsibility. That committee may operate essentially like a constitutional commission.

In Zimbabwe [ongoing process], a parliamentary select committee had an oversight role in the constitution-making process. It appointed seventeen “thematic committees” with 30 percent legislators and the remaining members drawn from “stakeholders” outside parliament.

Place

It may seem natural for the assembly to have its main seat in the national capital for symbolic reasons, and because that is likely to be the most accessible town. There may be good reasons for having it sit elsewhere:

  • to be away from the seat of the national legislature;
  • to symbolize the break with the past;
  • to avoid a place still affected by turbulence; or
  • to avoid the constituent assembly being subjected to undue pressure from the people and organizations of the already powerful capital city.

Similar factors may suggest not using other cities. In Bolivia the constituent assembly sat in Sucre, an old colonial capital, but not the current national capital where the parliament sits. But to some extent the constituent assembly became hostage to the demands of the Sucre people about the city’s constitutional status.

It may also be necessary to strike a balance between protecting the security of the members and ensuring that the security forces are not in a position to overawe them.

Even if the assembly sits in the same town as the legislature, it would be best for it not to sit in the same venue. But it may not be easy to find a place large enough for the assembly, which must have not only a hall for plenary sessions, but many rooms for committees, for support staff and facilities, and (if public access is to be permitted) for public facilities. The Kenyan body sat in a large hall designed for dance performances before tourists (chosen in preference to a city-center conference hall to minimize the risk of delegates slipping away to their offices or to shop). It was not easy to see or hear delegates in the spectator seats; a shortage of rooms was to some extent solved by the use of tents, but this meant that secrecy of deliberations was impossible. In Nepal the use of a conference center meant that the chair was on a stage, and the stage was the only part of the hall visible from the public gallery. In Afghanistan, a large tent was erected.

Support and facilities

The constituent assembly will need:

  • an administrative management body—which will probably require staff members with a wider range of skills than a normal legislative secretariat (see part 3.3 on establishing this body);
  • logistical arrangements for members (possibly including housing);
  • printing facilities of its own, or access to good facilities elsewhere;
  • communications (radio, computers, TV studio, and the like);
  • vehicles or access to vehicles if it is to travel; and
  • security arrangements. (For a more in-depth consideration of what is needed, see part 2.3.)

Duration

Predicting how long it will take a constituent assembly to complete its work may sometimes be hard—especially if the assembly has the entire constitution-making role. If it is set up to debate a full existing draft, a clear timetable may be possible—especially by limiting the life of the constituent assembly in order to limit its role.

Time limits prevent groups with more patience (but not necessarily more concern for the national interest, whose interest may be in financial gain) from obtaining advantage. On the other hand, an assembly composed partly of people unused to deliberative work of this type may take some time to understand and feel comfortable with its role. If the process is too rushed, more experienced members (probably seasoned politicians) may have the upper hand.

What happens to an assembly once it has finished its task?

It is important that the law (if any) should be clear about what happens when the assembly finishes its task. The interim constitution of Nepal is a little unclear: “The term of the constituent assembly is to be two years from the first sitting” but “on the day of the commencement of the Constitution promulgated by the constituent assembly” its task is to come to an end.

Turning the constitutional assembly into the first legislature under the new constitution may not be desirable. The assembly may be quite different in its makeup from a regular legislature,

as we have seen. But it is not easy to prevent this by existing law if the assembly is perceived as having full constituent power—in other words, it creates the new legality, which overrides existing law.

Conclusion

The context, as well as national tradition, may often define the choices listed above. Designers of the process need to follow models of other countries with care, and to learn from their own country’s past efforts and experiences.

 


3.1.3 National conferences

National conferences (sometimes called national conventions) are usually large, unelected bodies composed of representatives nominated by a wide range of interests established to discuss constitutional and other options for the future in situations of intense national crisis in the period of transition from authoritarian (single-party or military dictatorship) regimes to more democratic regimes. They were established mainly (but not only) in French-speaking countries in Africa from the late 1980s to the early 1990s. They were usually established rapidly, in response to a crisis, and often provided the first opportunity in two or three decades for wide- ranging public discussion of the issues facing the country. Their proceedings were generally broadcast live on television and radio.

In addition to government representatives, most national conferences consisted of representatives selected by interest groups such as opposition political parties and civil associations. They tended to be much larger than constituent assemblies; the national conference in the Democratic Republic of the Congo, 1991–1992, had more than three thousand participants. In terms of the constitution-making tasks that they performed, a minority of national conferences developed and adopted a constitutional text, in much the same way that some constituent assemblies do. More commonly, however, the main constitution-making roles involved development of principles and proposals that were shaped into a constitutional text by a transitional legislature established by the national conference. And in part because they often declared themselves sovereign and replaced the existing national executive and legislature, many national conferences had extensive roles beyond constitution-making.

Organizing and managing a conference could be difficult due to the combined effects of such factors as the speed with which conferences were established; the emerging opposition to the existing regime being weak and disorganized in many cases; their large size; and the many groups represented in them.

Origins of national conferences

The origins of most national conferences can be found in intense fiscal and political crises, some involving the collapse of banks; the inability of the state to pay the salaries of public servants; national strikes; and violent clashes of unions and opposition groups with military forces. Such crises have usually been exacerbated by international community pressure—from the mid-1980s, for structural reform of economies, and from 1988 to 1989, for political reform. The extent of the crises meant that the government had little or no legitimacy and so was unable to advance reform through existing institutions. Further, in most cases, political parties had long been banned or were extremely weak, resulting in little support for establishing a new national legislature or an elected constituent assembly as the way forward. There needed to be some other institution that enabled a national government with little legitimacy to engage with a wider set of interests that had not coalesced into a legitimate opposition party or group.

The best-known national conferences are those that were held in French-speaking Africa, the first being in Benin in February 1990. Subsequently they were held in Gabon, Republic of the Congo, Mali, Niger, Togo, Democratic Republic of the Congo, Madagascar, and Chad in the period from 1990 to 1993.

French and other influences

The choice of the national conference as a constitution-making institution in so many countries in crisis in French-speaking Africa was partially influenced by the ongoing connections of those countries with France, which had been the colonial authority in all cases, and continued to maintain close links in most. The significance of an institution that was to be seen as a model for the national conference—the États Généraux, which had met in Paris in 1789 on the eve of the French Revolution—was highlighted in the 1989 bicentennial celebrations of the French Revolution held in France and widely reported in French-speaking Africa. The education of the elites that organized the national conferences in France or in French colonial schools had emphasized the importance of the revolution and the États Généraux.

On the other hand, there were other influences than French links. In particular, large gatherings with some similarities to national conferences were also part of political reform processes developing in other parts of Africa from the late 1980s in countries without a French background, including Ethiopia, Namibia, Somalia, and South Africa. Further, not all French- speaking African countries established national conferences, though there were strong calls for them in the early 1990s from opposition groups in some such countries, for example, Burkina Faso, Cameroon, the Central African Republic, Côte d'Ivoire, and Mauritania.

It is also true that the national conference has not been solely a phenomenon of French-speaking Africa. The first one in Africa was in formerly Portuguese São Tomé and Principe, where a December 1989 conference of about six hundred mainly ruling party members had a limited constitution-making role. (It made recommendations for political reform to the ruling political party.) In part because the possibility of using an institution such as the national conference was opened up as a result of the experience of French-speaking Africa in the early 1990s, countries from other historical and cultural backgrounds have also established bodies with some characteristics of national conferences. Examples include Sierra Leone [1991], Russia [1993],

Indonesia (1999–2002 process leading to amendments), and Rwanda [2003] (though most of these might better be regarded as “hybrid” bodies, as discussed below).

Some features and problems of national conferences

Some closely related features commonly found in national conferences, and some associated issues and problems arising in their operation, require brief comment. They concern:

  • processes for making initial decisions about establishing such a body;
  • the variety of roles and tasks that they carry out, with particular reference to their constitution- making tasks;
  • the large size, the composition by representation of interests, and the short duration of the conferences, and some difficulties associated with those characteristics, in particular

    • difficulties in their acting as effective deliberative bodies; and
    • management difficulties, including translation; and
  • issues about chairing national conferences and the importance of a forward-looking perspective.

All of these features and issues can readily be considered in light of the experience of the nine national conferences held in French-speaking African countries between 1990 and 1993. Some basic information about those national conferences is summarized in table 10.

In addition, brief comments are required on the constitutional outcomes of those same national conferences.

Processes for establishing national conferences

The haste with which crises forced (usually) reluctant authoritarian governments to establish national conferences meant that there was seldom any detailed agreement negotiated between the government and the loose opposition groups about the goals, composition, and operation of the conference. The lack of such agreements made the work of some of the conferences particularly difficult, with government and opposition groups taking antagonistic stands and failing to cooperate. In Togo, soldiers supporting the president surrounded the conference venue on various occasions, enforced a presidential order to suspend proceedings, and later held the transitional legislature hostage.

The main preparatory work was usually limited to establishing preparatory commissions that decided which groups would be represented. In general, they played no role in selecting representatives of such groups, it being left to the groups to decide their own selection methods. Benin was an exceptional case, where a roundtable process was established in advance of the conference in which the government and the main opposition leaders negotiated basic agreements on the process and some initial principles that the constitution to be developed by the conference would follow. In the process, a degree of understanding was established among key actors in the conference, something that probably contributed to the success of that conference compared to most others. (A case study of the constitution-making process in Benin can be found in appendix A.2. Roundtable processes are discussed in part 3.2.2.)

Table 10: National conferences in French-speaking African countries, 1990–1993

Country Dates/duration Participant numbers (approx.) Role: Preparing constitutional principles or proposals, with transitional legislature established by national conference to develop and adopt new constitution Role: Preparing and adopting draft constitution, usually requiring approval by legislature, head of state, referendum, or a combination of these
Benin 1990, 10 days 488 Yes No
Gabon 1990, 3 weeks 2,000 Yes No
Republic of the Congo 1991, 5 months 1,202 Yes No
Mali 1991, 15 days 1,800 No Yes
Niger 1991, 4 months 1,200 Yes No
Togo 1991, 52 days 962 Yes No
Democratic Republic of the Congo 1991-1992, 17 months (intermittent) 3,000+ ? ?
Madagascar 1992, 10 days 1,400 No Yes
Chad 1993, 3 months 830 Yes No

Roles and tasks

National conferences were multipurpose bodies. Concerning their constitution-making tasks, there were two main variations. Most of the conferences developed some proposals about guiding principles for, or recommendations about, the text of a new constitution. Largely because of time limitations, they then usually established a transitional legislature and executive (at the same time ousting the existing executive and legislature) and gave the transitional legislature the task of developing the guiding principles or recommendations into a new constitution. (In practice, the transitional legislatures normally delegated that work to a committee.) In most instances the conference also stipulated that the new constitution be approved by a national referendum. In some instances, as in Chad in 1992, a preparatory commission readied the initial draft for the national conference to consider.

The other main variation involved the national conference developing its own draft constitution (usually together with other basic laws, such as a new electoral law). The short duration of the national conferences meant that in the few cases in which this occurred, most of the work of developing the draft had to be done in committees and working groups. While few developed a draft constitution, there were more that initially decided to take to themselves authority to do so, but when time pressures meant they could not meet for long enough to complete the work, they ended up being among the majority of conferences that delegated their authority to some form of transitional council. Chad was one such case. The national conference had authority to debate, amend, and adopt the draft received from the preparatory commission. But when the process took much longer than expected, the conference delegated the completion and adoption of the draft to a transitional legislature, which then took two years to complete the task.

When a conference did delegate authority over drafting the constitutional text to a transitional legislature, it could nevertheless influence the development of the new constitution in two main ways. The first was in establishing principles and proposals that the transitional legislature was required to take into account when determining the content of the constitution. The second was by determining the membership of the transitional legislature.

In addition to their constitution-making tasks, some national conferences addressed past crimes and human rights abuses. When they assumed sovereignty (as many did), they might also take on responsibility for establishing new transitional governmental institutions and planning elections. Without their functions being clearly defined, it could be difficult for participants to give constitution-making tasks their full attention.

Size, composition, and duration

The size, composition, and duration of conferences varied considerably. Table 10 indicates the wide range of numbers of participants in the nine conferences in French-speaking Africa, from a low of 488 in Benin to a high of more than 3,000 in the Democratic Republic of the Congo. Six of the nine cases had more than 1,000 participants. The numbers are approximate because official membership lists often changed, and because there were often many observers without voting status.

Participants were not selected through elections (as is usually the case with members of a constituent assembly). Rather, they were generally nominated to represent an institution, a political party, or an association of some kind. A huge variety of groups was represented, including labor unions, students’ and teachers’ organizations, human rights groups, professional associations, traditional leaders, religious communities, women’s and farmers’ groups, and educational institutions. The number of parties, groups, and associations represented varied from as few as about fifty (Benin) to about five hundred (the Democratic Republic of the Congo).

Generally speaking, a broadly representative organizing body (usually called a “preparatory commission”) would consult before determining the parties, sectors, and groups to be represented, and the number of seats to be allocated to each. It would then be a matter for each party, association, or group to decide on the method of appointment of the delegates to fill the number of positions allotted to it. Some political parties and associations were newly established in the weeks or months before the conference was set up, sometimes primarily for the purpose of getting conference representation. Jennifer Widner reports that it was easier to select representatives of associations and interest groups in countries where there was a tradition of national level “peak” associations, as in Europe, than it was in countries with a decentralized interest group model of the kind more common in British Commonwealth countries. The former were seen as legitimately selecting representatives, while in the latter cases every small association wanted its own representatives. In general, despite claims of national conferences being representative (in Benin the president claimed that the conference would represent “all the living forces of the nation”), the membership selection process resulted in overrepresentation of the political class and the educated elite in countries where the vast majority of the population was neither (Widner 2008).

The duration of the public sittings of conferences included in table 10 varied considerably, but most sat for much shorter periods than is usually the case with constituent assemblies. Six of the nine sat for periods of three months or less, and two for just ten days. These are remarkably short periods for a body intended to negotiate new constitutional arrangements intended to respond to deep crisis and conflict. Among the reasons for this phenomenon is the large size of the bodies, which can make them difficult and expensive to administer.

Issues arising from large size, complex composition, and short duration

The large size and short duration of national conferences are characteristics that could place obstacles in the way of their being effective bodies to deliberate on major constitutional questions. Such problems could be exacerbated where conferences have not been preceded by roundtable processes encouraging initial understandings between opposing groups. Further, short durations sometimes contributed to a tendency to rush the process, making it difficult for opposing interests to enter real negotiations at the conference. There was pressure on allied groups to make agreements and prepare draft texts in advance, or for the conference to delegate most responsibilities for developing the constitution to another body.

Large size and short duration also tended to reduce the opportunity for careful consideration of and negotiation about difficult and divisive issues. Indeed, it was often hard to organize the time needed for all delegates to speak, although there was usually pressure for that to occur. The more time that needed to be allocated to speeches by individual delegates, the less was available for serious debate about reform proposals. Further, there are particular difficulties in

managing deliberation and negotiation in large bodies, especially where there is a high degree of public scrutiny (as was the case with most national conferences). In such circumstances, with little time to speak, participants are often under pressure to take polarizing positions. The pressure can be worse if elections are likely to follow, as participants may then be under pressure to stake out clear positions that appeal to potential constituents, something that in itself can encourage the adoption of polarizing positions.

The size, composition, and short duration of these institutions can also give rise to difficulties with their management. Locating the funds needed to run large conferences was difficult, especially in situations of financial crisis (so this was a factor in the short duration of the majority of the conferences). Their large size and composition through representatives of groups contributed to their unwieldy nature. Tasks such as the registering of participants were sometimes extremely difficult. It was common for unaccredited participants to slip into parts of the proceedings. Short durations made it difficult to arrange basic services such as translation of documents and speeches, something often critically important in a multiethnic situation. In Chad, a divide that developed in the national conference between French-speaking and Arab communities was made worse by delays in translating proceedings and documents into languages other than French.

Chairing, and looking forward

The chairing of national conferences was critically important. Where chairs were positive, inclusive, conciliatory, and forward-looking, they made valuable contributions. But in circumstances in which the chair placed heavy emphasis on the conference’s role of addressing past crimes and human rights abuses, there was a tendency to look backward, with extensive airing of grievances and demands for revenge, rather than looking forward to what a new constitutional dispensation could have to offer. This was a particular problem in the Republic of the Congo and Togo, and one that was avoided (in large part by effective chairing) in Benin.

Constitutional outcomes of national conferences

While most national conferences did play important parts in processes that resulted in the adoption of new and more democratic constitutions, research by Jennifer Widner shows that the new constitutions offered lower levels of rights protections than countries that used constituent assemblies (Widner 2008). Further, they tended to fail at a higher rate (in the sense that there tended to be a return to higher levels of violence or suspension of the new constitution). Hence there is little evidence that national conferences have had a particularly positive record in terms of outcomes in constitution-making. On the other hand, it is not easy to determine the extent of the contribution to such outcomes of the constitution-making process as opposed to the kinds of economic and political circumstances existing in the countries in question at the time of these constitution-making processes.

Practical tips

This survey of the experience of national conferences gives rise to some practical suggestions for consideration by anyone considering developing an institution such as a national conference:

  • Careful consideration would be required about whether the circumstances are such that a national conference with features similar to those discussed here would be the most appropriate institution for undertaking significant constitution-making tasks. The institution has attractions mainly in a deeply divided crisis situation, where pressures for resolution of the situation are urgent and where there are limited aggregations of interest in established political parties. There are other institutions or procedures that can be used in some such circumstances. One is the roundtable, though it tends to be used where opposition groups are more clearly defined than has usually been the case preceding national conferences.
  • Given some of the difficulties experienced in operating many national conferences, in advance of establishing such an institution, a process similar to a roundtable (see part 3.2.2) should be used in an effort to establish some initial agreement on process and on the principles to be followed by the new constitution, and some political understandings among the parties involved.
  • The size of the membership of the conference should be kept as low as is practicable in the circumstances, as this can reduce management problems and improve the prospects of the conference being effective as a negotiating and deliberative body. Because processes of negotiation and reaching compromise can be undermined by rules and other arrangements under which all members are given time to make opening statements (often creating pressures on speakers to take polarizing positions), it may be preferable to give members opportunities to speak in committees and working groups. Further, if the conference is large, it is necessary to ensure that as much as possible of the negotiation and decision-making about constitutional issues is conducted in broadly representative (and competent) committees.

If associations and political parties are to be represented in a national conference, then to avoid problems with such bodies being established purely for the purpose of representation in the national conference, every effort should be made to agree on basic preconditions to accreditation for representation, including such things as the period for which such a body should be required to exist and the minimum number of members it must possess before it can be accredited.

Every effort should be made to ensure that the chair of the conference is a highly respected figure who is able to keep the work of the conference focused mainly on what is required for development of future arrangements that will reduce conflict and resolve problems, rather than focusing on how to address past abuses by government (there being other processes available to handle past wrongs).