3.2 Institutions that develop proposals about which final decisions are made elsewhere

In this section, the main distinction is between roundtables, which are generally relatively informal bodies, often formed in situation of crisis to put together constitutional proposals, and commissions and committees that are already in existence and are given that same task, or are specially created (usually by law) for that purpose. What they have in common is that they are not like legislatures (though they may be committees of legislatures) because they do not have any power to enact a new constitution.

We have also included here parties to peace processes; we are not concerned with their peacemaking roles, but with those aspects of their roles that relate to the content of a new constitution. It is an important assumption of this handbook that in constitution-making after (or even during) conflict, making a constitution may be an important part of the peace process. Where parties to a conflict are divided over an essentially constitutional issue they are unlikely to give a free hand in constitution-making to a commission or a freely elected constitutional assembly.

As is often the case, the boundaries may not be clearly defined. For example, a roundtable may be a peace process. Because a peace process will usually begin before more formal institutions can be set up, we begin with this topic.


3.2.1 Parties to peace processes

Peace processes intended to end violent conflict often have close links to constitution-making processes, especially when the cause of conflict has been access to state power. Such links can make the parties to a peace process significant, even dominant, actors in the constitution-making process. These parties can have interests and modes of operation different from those of parties involved in the more specialized bodies and processes that usually have the main roles in constitution-making processes.

There can be risks and opportunities in linking conflict resolution and constitution-making. Among the major risks are dangers that, in a situation of violence and insecurity, communities may draw inward, resulting in increased sectarianism, pursuing short-term solutions that protect sectarian interests or that constitutionalize and perpetuate divisions (as, for example, in Burundi). Further, there can be a strong tendency to try to exclude noncombatants. (Some specific dangers involved in that situation are discussed below.)

On the other hand, getting parties to a violent conflict to consider constitutional issues may present opportunities. Where conflict has resulted from perceptions of exclusion, putting the possibility of constitutional change on the table may be one of the few ways to get serious consideration for the idea of ending violence. It does so by creating space for political discussion that may open up possibilities for better understanding of opposing positions and of the possibilities for compromise. Constitutional debate can help opposing parties redefine their concerns. For example, the 2005 Comprehensive Peace Agreement in Sudan redefined the issues from a violently contested demand for Southern independence to how best to meet opposing concerns through constitutional arrangements for autonomy and a deferred referendum on independence. If it is possible to involve leaders of opposing armed groups in discussions with other groups and interests as part of constitution writing (though, as discussed below, this does not always occur), this can expose those leaders to a broader range of needs and concerns, and help moderate polarized positions.

Formal statements of the links between a peace process and a constitution-making process are usually found in the peace agreements made as part of conflict-resolution efforts. The extent to which peace processes have links with constitution-making varies greatly. A peace agreement may set out a road map for the peace process, which often includes the road map for making a new constitution and may not go any further (e.g., toward determining the contents of the constitution). Some peace agreements do deal extensively with constitutional content, in a variety of ways. Some set out guiding or immutable principles upon which the proposed new constitution should be based. Others state quite detailed proposals either for changes to the existing constitution or for a new constitution, usually leaving it to some other body or process to enact the proposals. In a few cases the peace agreement is in fact a constitution, as was the case with the interim constitution of South Africa of 1993. Alternatively, a completely new draft national constitution may be attached to the peace agreement, as with the constitution for Bosnia-Herzegovina attached to the Dayton Accords of December 1995.

Peace agreements are usually intended to be binding on the parties, and so often contain sequencing and other arrangements intended to encourage implementation by the parties (including implementation of provisions on constitutional process or content). In addition, international community actors are often involved in the development and signing of peace agreements (as mediators, facilitators, parties, or witnesses). Such roles may subsequently involve them in encouraging or even actively supporting implementation of the constitutional aspects of the agreements.

The links among conflict-resolution processes and constitution-making in any particular case vary greatly, depending on the nature of the conflict and the goals of the main parties. Such variations can have significant effects on demands about the constitution-making process and the roles parties seek to play in it. Examples of peace processes where key parties may seek to define changes to the constitution but not seek major roles in important aspects of constitution- making include efforts to end secessionist conflicts in which neither the national government nor the secessionist rebels have won a clear victory. In such cases the secessionists may be interested mainly in seeking agreement on the details of constitutional change needed to provide autonomy for the secessionist region, and in a few cases also a deferred right to a referendum on independence, as with New Caledonia in relation to France in 1998, Bougainville in relation to Papua New Guinea in 2001, and South Sudan in relation to Sudan in 2005. In those cases, the peace agreement defined agreed-upon constitutional changes, and left the process for making those changes to the existing national legislature.

The situation can be quite different in cases of conflict involving attempts by a party expressing grievances about previous marginalization and so seeking to capture control of the state. The rebels may be less interested in providing for the content of the final constitution in the peace agreement, and more concerned with obtaining both a commitment to complete replacement of the constitution and a guarantee of a significant, even dominant, role for the rebels in the process of making the final constitution. Where an interim constitution is involved, the rebels can also be expected to have a strong interest in determining its contents. Thus in Nepal (in the case of the Maoists) and South Africa (in the case of the African National Congress), the peace agreements provided for interim constitutions (in South Africa providing guiding principles for the final constitution), which guaranteed the Maoists and the African National Congress significant control of or influence over the interim governments and the processes for making final constitutions.

The different interests and modes of operation that parties to a peace process may have in relation to constitution-making when compared to groups operating within more specialized constitution- making bodies can have significant effects on a constitution-making process arising from the peace process. Several interrelated potential issues (some of which have already been touched upon) require brief discussion, including possible responses to problems that may arise.

First, issues of sectarianism, short-term thinking, and resistance to compromise in situations of violent conflict and insecurity have been mentioned already. The closely related difficulty of limiting participation in the constitution-making process to combatant groups can be a particularly strong tendency when negotiations occur in a situation of ongoing conflict. In such circumstances the parties to the peace process may concur that a lasting agreement will be more likely if confidentiality and secrecy are maintained and the process is controlled by and restricted to the leaders of the warring groups. Further, there could sometimes be risks that opening a negotiating process at an early stage could empower groups and interests without real power or status, and could contribute to substantial elaboration of the agendas of issues. While these may be real dangers that do contribute to the difficulty of the decision-making process, there are usually other important issues involved. In particular, injustices can be done to significant groups that are excluded, something that may exacerbate social divisions. (An example of this is Sri Lanka, where the exclusion of Muslim and Indian Tamil communities from successive peace processes where constitutional issues were a significant part of the process has had ongoing divisive effects.) Limiting those involved in constitution-making decisions to combatants has other dangers. They may lack legitimacy in the eyes of the wider community. The success of any new constitutional arrangements may rely too much on the commitment of the narrow group of negotiating parties, and may fail to respond to broader social needs. The new constitution may then lack the social foundations needed to gain the widespread support it requires to be sustainable.

A second, related set of problems arises because in a constitution-making process linked to conflict resolution, the issue of who has seats at the table will be seen as determining access to power in the long term, through decisions on the constitution. So access to seats in the process becomes critical. The result can be splits in fighting groups, or even the emergence of new groups. Alternatively, because so much is at stake, leaving out any faction can result in the emergence of spoilers.

Problems of both these kinds are sometimes handled in a two-stage process, the first involving mainly the warring parties, which is intended to build confidence and establish order, and the second, more participatory stage, in which the “final” constitution is made. The access of parties to the first stage (usually involving negotiations of peace process matters and short-term constitutional arrangements) can be flexible. Thus in South Africa, the interim constitution (inclusive of guiding principles) was negotiated mainly among the key parties, with some parties joining quite late in the process. The constituent assembly process that developed the final constitution was more participatory. Another approach could involve provision for a mandatory review, within a specified period, of a constitution negotiated between limited parties.

Third, problems can arise from the privileged roles of combatants as parties to the peace process contributing to demands for constitutional provisions that maintain their privileged status under the new constitution. For example, the army or security forces of the state may seek provisions that give them special constitutional roles or protections. Rebel groups may seek incorporation into the state’s armed forces. Another danger concerns a narrowing of the range of constitutional issues that may be considered as part of a constitution-making exercise based on a peace process. There may be a tendency to limit them to issues of major concern to the parties to the peace process, contributing to a lack of balance in the constitution and undermining its wider legitimacy.

Fourth, parties to a peace process can usually be expected to understand well the political context they face, it being that which usually drives them to demand particular constitutional concessions. There is often a tendency to focus mainly on issues about access to political power under a new constitution, and a lack of proper attention to other vital issues. Further, parties may have limited interest in, or even understanding of, the longer-term legal implications of their constitutional demands. Combatant parties to peace processes (especially, though not only, rebel groups) sometimes have limited constitution-making expertise. They may have limited ability to express their grievances and concerns in terms of constitutional issues. Further, they may see constitution-making as just one of many possible strategies for achieving their goals, and keep open the possibility of a return to violence.

As a result, there can be special needs for helping parties to peace processes better understand what is involved in constitution-making. Legal advisers to parties in peace processes may need to be involved early in order to help the parties frame their concerns as constitutional issues, something that can often help redefine issues and transform conflict. (This has occurred in many peace processes, including Bougainville, New Caledonia, South Africa, and South Sudan.) Facilitators of peace processes should give special attention to the need to encourage continued commitment to the constitution-making aspects of the peace process.

A fifth set of issues arises because increasingly, even in peace processes responding to conflicts internal to a particular country, third-party mediators and international actors play significant roles. Often it is their timetable concerns and other agendas that tend to dominate the process. Such actors may be concentrated on resolving the violent conflict, and have a limited understanding of constitution-making processes or issues. These difficulties suggest a need for improved understanding of and training about constitution-making on the part of international actors involved in the many peace processes that are associated with constitution-making.


3.2.2 The roundtable

Roundtables are informal consultative processes sometimes used to negotiate initial steps in a constitution-making process during a period of transition from an authoritarian to a more democratic regime. They usually occur in situations of national crisis, where the existing national constitution does not provide a legitimate basis or adequate guidance for a workable constitutional reform process. Pressure to escape the crisis results in members of the national government consulting the political opposition (and sometimes other interests) about the steps needed to initiate and advance a solution to the crisis, including agreement on constitutional reform that is then usually undertaken in accordance with the requirements of the existing constitution.

The roundtable process therefore usually enables the maintenance of legal continuity, which can be important in situations where those controlling the existing regime remain powerful and would consider a break in legal continuity illegitimate. In this respect, a roundtable is different from many national conferences (institutions also often used in situations of national crisis) where loss of the legitimacy of the existing regime and the extent of the national crisis are often so great that the national conference seeks a break in legal continuity by declaring itself sovereign and establishing transitional constitutional arrangements while a new constitution is being developed. (See part 2.1.9.)

The use of the term “roundtable” in relation to constitution-making processes is a relatively new development. It is most commonly used with reference to the processes in Hungary and Poland in the late 1980s, both part of transitions from authoritarian socialist regimes. (The case study of the constitution-making process in Poland—see appendix A.10—provides an overview of how a prominent example of a roundtable process operated in practice, and also outlines subsequent steps in the constitution-making process in Poland that began with the roundtable.)

The term has also been applied to other processes in Eastern Europe from the late 1980s— particularly those in Bulgaria, Czechoslovakia, and the German Democratic Republic (Eastern Germany)—as well as some in Latin America (notably Chile in 1989 and Colombia in 1990) and to processes in Spain (in 1976) and South Africa (in the early 1990s). Similar arrangements have been used in many other processes without being described as roundtables. Examples include the processes used to establish some of the national conferences (see part 3.1.3) held in French-speaking African countries from 1990 to 1993, the best known example being Benin. (See the case study of the constitution-making process there, in appendix A.2.) The process in pre-independence India from the 1930s for consultation among local actors about decisions on constitutional progress toward independence might also be classified as involving a roundtable.

Roundtables themselves usually involve at least two major steps. First, government and opposition groups engage to decide on structures for negotiations (numbers of representatives, chairing arrangements, working groups, and so forth). Such negotiations can take time—six months in the case of Poland. Second, meetings of the agreed-upon roundtable structures are held, and can often (though not always) be completed in quite a short time—just a few in the cases of both Hungary and Poland. The structures used vary greatly from case to case, there generally (though not always) being a high degree of flexibility in the arrangements, for example concerning criteria for public participation, determining the agenda, and setting decision-making rules. Some roundtables are less flexible. For example, in Hungary in 1989 a three-tiered structure was established. There was also agreement among the nine opposition groups that participated in the process that all their decisions would be made by consensus. One result was that each opposition group had a veto on decisions on joint opposition positions, and hence considerable influence on the roundtable process. Much of the work is usually done in committees and working groups and informal consultations. The work of the roundtable often occurs in secret, or at least without any media or involvement of members of the public.

Because a roundtable has no basis in constitutional or other legal rules, there is usually no hierarchy among the participants, no formal rules for its operation, and no preassigned status even to its most fundamental decisions. When the process starts, the participants will often be quite unclear about the direction in which things will go. The key point is that public participation in the process represents a commitment to negotiating a solution peacefully rather than using the alternative of resort to open conflict and violence.

The main reason why the period within which the roundtable itself meets is quite brief is that the roundtable process is used only to negotiate limited initial steps in a reform process; the legal steps will be taken elsewhere, in institutions with a legal basis. There are cases, however, where roundtable processes take far longer, usually because either the changes being negotiated in the particular case are far-reaching or because the government tends to see itself as still negotiating from a position of strength.

South Africa is an example of far-reaching change being negotiated through such a process. There the process was used to negotiate the concept and content of the interim constitution. The negotiations to establish it, along with the negotiations held to determine transition arrangements, constituted the roundtable phase. The negotiations to establish those processes began in the 1980s, while the negotiations on the arrangements eventually incorporated in the interim constitution were undertaken through the Convention for a Democratic South Africa (CODESA 1 and CODESA 2) and the multiparty negotiating process that ran from 1991 to 1993. In Chile, the government installed by the 1973 military coup continued to see itself as in a fairly strong political position, despite the defeat of the dictator, Pinochet, in a presidential plebiscite in 1988 held under a constitution imposed by the military in 1980. But that unexpected defeat created pressure for political and constitutional change that resulted in almost ten months of intense negotiations among the military government, the main opposition political parties, and political parties that supported the military. Although ultimately successful, the negotiations came close to collapse on several occasions.

After the roundtable has completed its work, the constitutional change agreed to through the process happens elsewhere. In a majority of cases the agreement covers the details of constitutional amendments and also the idea that the amendments will be made through an existing constitutional reform process. That was the case in Chile, Hungary, and Poland, where liberalizing amendments to be made by existing but undemocratic parliaments were agreed upon. Similarly, in South Africa, the contents of the interim constitution were agreed upon, as was the use of the existing parliament to adopt it (thereby providing the legal continuity of such importance to the ruling party). In a few other cases, and especially in preparations for a national conference, a roundtable is less focused on details of constitutional amendments than on the next steps in a reform process. The roundtable process in Benin, for example, did agree on basic principles that should be met by any new constitution, but was much more concerned with agreement on the need for and structures and other arrangements for the national conference.

The high degree of informality and flexibility involved in a roundtable makes it quite different from most peace processes and from legally defined constitution-making institutions such as constitutional commissions and constituent assemblies. There can be advantages to informality (which is often accompanied by secrecy) in that the participants can avoid loss of legitimacy or stature if the process does not achieve particular outcomes. They can then be freer to make some other move to initiate change than would otherwise be the case. There may also be advantages in the flexibility regarding possible outcomes that is permitted by a roundtable process, as this can include arrangements for incremental progress in reforms that can be revisited as the fruits of initial progress are tasted.

On the other hand, where the roundtable marks the beginning of a process that continues to have limited popular involvement (as was the case with the process in Hungary for many years after 1989), secrecy and the lack of public involvement in the roundtable process can contribute to a lack of legitimacy of the constitution resulting from the process.

There can be immense pressures on those involved in attempting to establish or operate within roundtable processes in situations of deep crisis, where there is a grave risk of violence in the event of failure, as was the case in Eastern Europe and Latin America in the late 1980s. Final responsibility rested with those actors. This was a different situation from that of pre-independence India in the 1930s and early 1940s, where most Indian actors felt that the British colonial government had final responsibility, and they could afford to remain relatively disengaged.

Roundtable processes can sometimes offer other advantages in situations involving extremely undemocratic and repressive regimes where inflexible constitutional arrangements have made liberalizing reform difficult to achieve. First, the process can provide legitimacy for a reform process in a situation where the existing regime has little legitimacy, by enabling an inclusive process in a situation where democracy was absent. It allows inclusion of a wide range of actors in a process intended to reach common agreement on the way forward. Second, in situations such as Hungary (and many others) where there is no coherent opposition, a roundtable can provide a framework within which opposition groups can emerge and learn to cooperate, negotiate with the government, and participate in constitutional decision-making, in preparation for participation in government. Third, it can provide a form of limited power-sharing arrangements (between the government and the emerging opposition) where none was possible under the existing constitution. Fourth, it can permit concessions to be made by groups in opposition to the old regime (as was the case in Chile, Hungary, Poland, and Spain) without those concessions necessarily being incorporated into final constitutional arrangements. Instead, the opposition groups remain free to engage in developing more permanent constitutional arrangements when the agreed-upon reforms have worked to change the balance of political forces, thereby opening possibilities for more significant change to occur. Fifth, it can provide for learning (by both the old regime and emerging opposition groups) about constitutions and constitutional limits. Sixth, a roundtable can help develop cooperation among opposing factions (government and opposition) and their leaders that can contribute in many ways to progress in later stages of reform processes.

Practical tips

The following practical tips are offered for anyone considering making use of roundtable arrangements as part of a constitution-making process:

  • A roundtable is mainly restricted to use in situations where there is both an authoritarian regime that retains a reasonable degree of authority but is becoming open to the possibility of reform, and also some coherence and leadership in the opposition groups that enable them to cooperate effectively.
  • It should normally be as inclusive as possible, in terms of elements in the existing regime and the various opposition groups. Only by being inclusive will it give sufficient support to the reforms agreed on through the roundtable process.
  • The practical arrangements for the roundtable process should normally be flexible, and permit the parties to work together in whatever way enables the process to make progress.
  • In addition to working toward agreement on constitutional change and next steps in the constitution-making process, a roundtable should aim to contribute to the development of understanding and working relationships between government and opposition leaders.
  • There are often advantages for opposition groups if a roundtable process agrees to a limited degree of reform that may open the way to more extensive reforms later. There can be a risk for opposition groups that agreement upon too much detail at the roundtable stage may lock in concessions that offer little advantage to them at a later stage of the reform process.

3.2.3 Constitutional commissions, committees, and other specialist bodies

In the introduction to this part, we drew attention to two types of bodies that have been central to drafting and adopting constitutions. One, legislatures and constituent or constitutional assemblies, was discussed in the previous section. The other is constitutional commissions, committees, or similar bodies. These bodies have limited, specific functions related to the constitution-making process. They can vary from the important task of drafting the entire constitution to providing specialist advice (for example, on financial aspects of a decentralized system, or on the independence of the judiciary) to another body, which will prepare or adopt the draft constitution.

Here we use “constitutional commission” to refer to a body (other than a committee of the assembly, or “parliamentary committee”) that is formed for the purpose of preparing a draft constitution for consideration or adoption by another body. So we are drawing a distinction among three types of bodies that are charged with this responsibility:

  • special constitutional commissions/committees;
  • committees of a legislature; and
  • bodies with other responsibilities that are for a while given constitution-drafting responsibilities.

In this section we shall also look briefly at other committees and commissions that may have more limited roles.

Commissions are different from the legislature or the constituent assembly in at least three ways: function (they do not make final decisions on the constitution, being advisory), qualifications (primarily expert, rather than political or representative), and size (small, and therefore with different dynamics from assemblies). The effect of these differences is evident from the precise mandates, independence, and procedures of the commission and the assembly.

The range of tasks assigned to a commission will vary from process to process, but it may include:

  • carrying out (or coordinating and supervising) civic education;
  • collecting and analyzing public views;
  • preparing a draft constitution;
  • seeking and collecting public views on the draft constitution; and
  • organizing and being part of a constitutional assembly (a rare role for a commission, and an unsuitable one).

Whether to have a commission

There are two main issues here: first, what the general arguments are for and against having a separate commission as one of the elements in a constitution-making process, and second, what the complex of factors, some logical and some more a matter of tradition, is that leads individual countries to adopt or not to adopt this model. We are here talking of a commission, not of a committee of the legislature or assembly.

General rationale for independent commissions

Although the use of independent commissions, at least those with responsibility to prepare a draft constitution, is limited, it offers considerable advantages, most of which follow from its expert membership and political independence.

  • It can do considerable preliminary work for the deciding body, and for this reason the work of the assembly can be accomplished relatively quickly.
  • It can promote civic education and knowledge of the constitution-making process and constitutional issues.
  • It may be a more efficient body to receive and analyze public views and recommendations.
  • It brings appropriate constitutional experience to bear on public consultation and decisions that may be beyond the capacity or even the interest of most politicians.
  • There are greater chances that a commission will put the national interests above sectional interests than would a parliamentary committee. Because it is relatively more disinterested, it is also likely to be more effective in building a national consensus; its small size and expertise are more likely to allow a deliberative process than would an assembly. An analyst of the Brazilian process [1988], in which the constituent assembly, which started without a prior draft, had 559 members divided into 24 thematic committees, concluded that this made a coherent constitution nearly impossible, in particular given the weak presidency and party system.
  • There is also the advantage in the division of labor: one body to propose the draft and another to debate and adopt it, based on the notion that technical and professional expertise is required to draft, and a more political process is needed to adopt, the constitution.
  • There is considerable suspicion in most countries now of both the intentions and the competence of politicians, so an independent commission restricts choices open to assemblies and forces them to consider recommendations of a broader cross-section of society. A commission that is not independent, such as that of Afghanistan [2004], will often be chosen to represent government interests, thereby thwarting the benefits of a commission.
  • The chances that the commission will produce a draft are quite high, and in this way the process will be sustained despite acute differences between political and social interests.
  • An independent commission seen to be both neutral and expert, which discharges its responsibilities conscientiously and transparently, can legitimize both the process and the outcome.

Some weaknesses

It is also necessary to be aware of the drawbacks of a commission. It is likely that politicians may have more sense of ownership if the draft is prepared by them or on their behalf by a parliamentary committee. Learning opportunities for politicians may be lost, including those that come from hearing firsthand the views of the people during public consultation. There is the danger that the commission may isolate the constitution-making drafting process too much from the politics of the day. It may not succeed if there are significant differences that must be resolved directly by parties to the previous conflict. And as we have already noted, the commission can be manipulated by the government or other powerful interests. Although the work done by the commission may relieve the assembly of some of the load, the overall length of the process is likely to increase due to the overlong conduct of civic education, the receipt and analysis of public submissions—and the self-interest of the commissioners. And under pressure from the members of the public, who are unlikely to have a proper understanding of the appropriate function of the constitution, the commission may include recommendations that may be considered by many as unsuitable for a constitution, such as matters of policy. (See part 2.2.) A recent comparative study undertaken by the United States Institute of Peace of nineteen constitution-making processes observed that of those processes that used commissions, these bodies did not seem to produce a better result than those using a constituent assembly or parliamentary drafting committee with experts. However, this was a limited sample of cases.

Explaining the use of commissions

The prevalence in Africa of the use of commissions may be due partly to the resistance of politicians to political reform, and doubts about their competence. But it may be a response to the lack of an organized civil society, which results in an uninformed public and provides few channels for the expression of views. Few African countries have effective or ideological political parties that might play a leading role in the process (unlike in countries where the assembly process can be used, such as in Europe). Parties tend to represent only themselves as politicians in Africa, while in developed democracies, political parties represent social, class, regional, and economic interests—and in this way represent the larger society.

Committed to a participatory process, these countries find that an essential preliminary is civic education, best carried out by an independent commission. Moreover, traditional systems of governance, with which some people may be familiar, are not seen as relevant to a modern multitribal state. Foreign experiences become a source of ideas, mediated by an expert commission.

Important exceptions to the English-speaking African tradition are Namibia and South Africa. South Africa used no commission, perhaps because the conflict was too serious to be resolved in this way; direct negotiations between political parties were inevitable to break the deadlock that would have ensued otherwise. Multilateral talks that led the way forward and proceeded to draft what became an interim constitution, sometimes referred to as a roundtable process, also had elements of a commission, although it was dominated by political parties. In Namibia the absence of a commission can perhaps be accounted for by the active role of the United Nations and the need to negotiate with South Africa on independence, and also by several informal meetings and conferences having developed sufficient consensus to facilitate a formal process (under principles established by the United Nations Security Council).

An independent commission is more likely to be established if civil society is involved in the negotiations leading to principles and procedures for a constitution-making process. On their own, politicians are less likely to want an independent commission. Although one was proposed in Nepal [ongoing process], there was great resistance from key political parties. (It is likely that a commission might have greatly facilitated the process, especially given the rather unsophisticated and disorderly procedures followed in the constituent assembly.) In the former Communist states of Eastern Europe, the Communist and democratic leaders preferred direct negotiations, mostly in the form of roundtables. (See part 3.2.2 on roundtables.)

Designing an effective commission

Many of the advantages suggested above depend on the commission being expert and independent, and having enough resources for its tasks (which can be multiple). It is useful if the commission is also representative of different interests, without compromising integrity. However, these conditions are not often met. There have been allegations that most African commissions were not independent, either in their method of appointment or in operational autonomy. Various methods of appointment have been used, some more conducive to independence and competence (a competitive and transparent process), others less so. (In most countries the appointment has been by the executive or political parties.) The government and political parties have not been able to resist the temptation to influence or even instruct commissioners (especially in Afghanistan [2004]). Nor have the commissions always been sufficiently funded; some commissions had to secure funding from foreign sources to complete their tasks.

So to get the best results from the commission, it is best to ensure its independence. In some countries commissions are appointed by the executive under a general law for commissions of enquiry—legislation designed more for enquiries into administrative or policy issues than for constitution-making. Such a law gives the executive the power to define terms of reference, appoint and dismiss the commissioners, terminate the commission before its task is done, or refuse to publish its recommendations. These qualities have discredited commissions in Zambia and Zimbabwe, and complicated the goal of new, acceptable constitutions.

Another aspect of independence is the relationship of the commission to the legislature. Sometimes a legislature has a role in the appointment of the commission (often on the basis of party deals), but it is important that once appointed, commissioners should be left alone to do their jobs. In some countries, commissioners have to swear an oath that they will exercise their functions without any influence from political parties—and indeed may be required to sever relations with political parties. Parliament may appoint a select committee for liaison with the commission—and there will be need for this, but care must be taken that the select committee does not start to give instructions to the commission.

Similar issues arise in relation to funding and staffing. Enough funds should be provided, but, subject to the normal official procurement rules, the commission should be allowed to manage the funds. It should also be entitled to appoint its own staff, subject possibly to some general rules of inclusion, particularly in multiethnic states. In practice, commissions have seldom been allowed autonomy in all these matters.

Membership

In some countries, foreign experts have been appointed to enhance both the expertise and the independence of the commission (in Fiji [1997], the chair; in Kenya [2010], three of the nine members). Otherwise the issues are whether the commission should be expert (and exhibit what sort of expertise) or representative (at least of different aspects of the nation), or whether it should try to combine both features.

Normally the commission should be restricted to a small size (say from twelve to twenty-five or so, to ensure the range of skills and representation) so that there can be proper deliberations. But in Fiji [1997], the commission consisted of three, one a foreign actor (too small a commission, especially too small to be representative, including of women), whereas the commission numbered five hundred in Zimbabwe [2000] (too large).

Legal framework

Commissions in some countries are established by special legislation, sometimes enjoying constitutional entrenchment, which sets out the essential components of the whole process of constitution-making (as in Kenya in the 2000 and 2008 laws, although the 2000 law was not entrenched—a serious omission that was rectified in the 2008 process). In Britain, considerable use has been made of royal commissions, in some respects similar to commissions of enquiry mentioned above. Generally the royal commissions enjoy great prestige and independence, though their terms of reference are decided by the government. A major review of the British constitution was undertaken by a royal commission from 1969 to 1973, with a focus on devolution.

Many countries, especially within the common-law world, have laws about commissions of enquiry, which are ad hoc bodies appointed to inquire into a particular matter. Commonly a commission is appointed by the government (perhaps even personally by the president). It may comprise one or several members, and the commission will usually take evidence from people and produce a report—which it usually has to deliver to the person or body that appointed it. In many countries there is no guarantee that any report will be published. And the appointing authority may simply stop the proceedings at any time.

In 2001, Uganda set up a constitution review process using its Commissions of Inquiry Act. Zimbabwe used this vehicle for a constitutional review in 1999–2000 (it called it the “constitutional commission”). The large number of people appointed to the commission shows the flexibility of the institution. But one international NGO noted that under the act, the constitution was under the control of the president and potentially reversible by the government.

Many countries have permanent bodies with the mandate of considering proposals for reform of the law—whether those suggestions are generated by themselves or by the government (sometimes called the “law reform commission”). One advantage of making use of such a body might be that it already has a library, staff members, including researchers, and (often) legal drafters. On the other hand, law commissions usually face the issues of law and practice that concern lawyers, rather than issues with broad social and political implications. The Indian commissions have produced reports on the appointment of judges (at least twice), a constitutional bench in the Supreme Court, and the appointment of prosecutors. These issues all have constitutional dimensions, but they are narrow, and not the sorts of issues that are likely to divide a country in conflict.

In Malawi [1994], there is provision in the existing constitution for a law reform commission, but for reviewing its constitution Malawi formed a special law commission under that article, comprising lawyers and judges, church people, academics, and others.

The Indian National Commission to Review the Working of the Constitution was appointed pursuant to a government decision in 2000. It came under the Ministry of Law, and did not have independent research facilities, which were provided by the ministry but supervised by the commission. It had its own funding, which came through the ministry. The government appointed the members and set the deadline.

At various stages Nigeria has set up bodies by order of military governments, whether formally (by law) or by governmental order. One of these was the “fifty wise men” constitutional commission that proposed the shift to a United States-style system, adopted in 1979. The dynamics of constitutional reviews are different under military (and other undemocratic) regimes. Legal form matters relatively little when the government is not accountable. One commentator on the 1979 commission noted that the Nigerians were not told where the commission’s instructions came from, or why their parliamentary system had been changed to a presidential one.

Separate commission or committee of the legislature or assembly?

The type of drafting commission discussed in this section is similar in some respects to the committee often set up by the assembly or legislature in order to undertake some preliminary functions on its behalf, including public consultation and preparing a draft constitution.

The two types of bodies (commission and assembly committee) are different in important respects. The constitutional commission is based on assumptions about the virtues of a separate and independent body; the other is pragmatic, making up for deficiencies of the assembly as a large and deliberative body. There is an obvious difference in the composition of the two bodies (though in Zimbabwe [ongoing process], the parliament set up thematic committees that include those who are not members of parliament. (See part 3.1.2 on constitutional assemblies.) The status of the draft produced by a commission is often higher than that of a committee, over which the plenary has complete control. The commission may be a more effective body for civic education and public participation, but the committee may be more effective for transmission of public views to the assembly—often the ultimate decision-maker. The recommendations of the committee may carry more weight with the assembly, as they are often the result of negotiations between political parties represented in the assembly. The rules by which the committee makes rules (normally a majority) may be different from the rules binding the commission.

Box 39. Questions to think about when establishing a commission or committee

  • Does the mechanism being proposed allow for the members to use their expertise to deal with a wide range of issues, including politically sensitive issues, or is it dominated by lawyers or some other group?
  • Will the body be perceived as being representative of the people (and is that important for this body)?
  • Is it sufficiently independent?
  • Is the body able to invite and evaluate large numbers of public submissions?
  • What happens to its reports—are they necessarily published, and is there any machinery for ensuring that they are considered?
  • Are the body’s resources sufficient for the major exercise of constitution-making?
  • Can the work of the body be stopped at any time by those who set it up?
  • Is the body genuinely being used to advance reform, or is it really a mechanism for NOT doing something?

What happens to the commission draft?

The primary function of the constitutional commission is to prepare a draft constitution for consideration and adoption by another body. In many countries a commission could claim to have reflected the people’s preferences more accurately than politicians do. Generally, people place importance on values and principles, and politicians on institutions. There is some danger that values and institutions may not converge, creating internal inconsistencies and tensions. So it is desirable that commission drafts should be protected to some extent from ill-informed changes. One way this might be achieved is if the commission establishes a good rapport with the people and wins their confidence. Perhaps if the Fiji commission [1997] had involved the people to a greater extent than it did, the parliamentary committee would have found it harder to resist its recommendations; as it was, the committee made several changes to the draft, driven by political expediency rather than by principle, so that the document became a bit incoherent. Another way is to make it hard to change the draft; see the note on Uganda and Kenya below.

Most often a commission’s draft goes to a constitutional assembly or the legislature. But most unusually, the interim charter of the Somali Republic (2004) provided that the draft of an independent commission would be referred directly to a referendum. Generally it is thought wise to provide for some political “vetting” of the draft (if only because of the need for party acceptance).

Even when the draft goes to an assembly or legislature, there is no standard pattern. In Kenya [2005], the draft was to be debated by the public before the National Constitutional Conference began its deliberations. The draft approved by the conference was to be submitted to the national assembly “for enactment within seven days.” (Since the constitutional provision on constitutional amendments applied, enactment would have to be by a two-thirds vote, and parliament could reject, but not amend, the draft.) A further twist was added by a dubious decision of the constitutional division of the high court that a referendum was also needed. A referendum held a year later clearly rejected a draft that the legislature had changed in some fundamental respects from the conference’s draft.

The route to the draft in Kenya [2010] was even more complicated. The expert committee, whose principal task was to produce a “harmonized” or consensus draft, had to submit this draft to the public for debate and discuss it with a reference group (consisting of civil society actors). On these bases, it had, if necessary, to revise the draft. The revised draft was to be submitted to the parliamentary select committee for comments (the law was somewhat unclear what to do with the committee’s comments, but the expert committee took the view that, on contentious issues, it had to accept them). After further revisions, the draft was taken to the legislature, which could propose amendments by a two-thirds vote. Finally the draft was submitted to a referendum and was adopted.

In Uganda [1995], the draft went to a constituent assembly elected as such; the commission’s draft could be amended only by a two-thirds vote, and the assembly had the option to refer any matter for final resolution to a referendum, but a referendum as such was not required for approval. In Eritrea [1997] the draft was submitted for public debate, and then sent to the national assembly, which could amend it. It then underwent another round of public debate before it was put to the public in a referendum. In Zambia [2010] it went to the president and the cabinet, which issued a white paper (rejecting many provisions), and the revised draft was submitted to and approved by the legislature. The president of Zimbabwe made major changes to the draft (although the commission was largely handpicked by him). It then went to a referendum in 2000, where it was rejected.

In Afghanistan [2004] the commission was not independent and the draft was heavily revised by the transitional government through a process of horse trading among political leaders, warlords, and clan leaders. It was then submitted to the Constitutional Loya Jirga established to approve the draft. Further horse trading and demands made by the United States and the United Nations, as well as by women and minorities, resulted in further significant changes to some parts of the draft. The government made changes even after the draft left the Constitutional Loya Jirga.

In Fiji [1997] the commission’s draft went to parliament, which referred it to a joint committee of both legislative houses. There was a period of public debate before the committee began deliberations, but it was not officially organized and did not reach many people. The proceedings of the committee were secret even from the expert advisers to the parties.

In Iraq [2005] the draft produced by the parliamentary commission (which was extended to include some Sunni nonparliamentarians, as few were elected to the assembly due to a Sunni boycott) was ignored by party leaders who, under pressure from the United States, negotiated fundamental decisions and completed the draft in secrecy.

This account shows that the drafts created by commissions have an uneven record of success. This assessment assumes that the aim of the drafts is that they be adopted with as little change as possible. But it can be argued that the aim of the draft is to start or reinforce a nationwide debate on a set of proposals, provide some orientation or direction, or identify crucial issues on which decisions must be made through democratic procedures. And commissions perform other functions besides producing a draft. They have to conduct civic education with the people and increase public awareness of democratic values and the capacity to participate in national affairs.

Other, specialist, bodies

Commission-type bodies have been used to perform specific tasks short of producing a draft. Their role may be to produce ideas that may streamline specific proposals. A two-person committee was set up in Papua New Guinea to propose details of a provincial government; likewise in South Africa [1996], the assembly was helped by experts to design a provincial government. The South African assembly was also assisted by a panel of constitutional experts to clarify interpretations of proposed provisions or to resolve differences, and another body enabled it to draw in a greater number of the more recalcitrant Afrikaaners into the process. The Eritrean commission was assisted throughout by a fourteen-member board of foreign experts, lawyers, historians, political scientists, and anthropologists. Other areas where assistance has been sought from specialist bodies include fiscal federalism, boundary adjustments, and the electoral system. A special kind of commission was used for the independence constitution of Malaysia—composed entirely of foreign experts, in the search for an objective analysis of problems facing Malaysia and looking for a consensus. (See part 3.4.1.) In part 2.5.2 on dealing with divisive issues, we discuss briefly the formation of special bodies to address particularly divisive issues in a constitution-making process.

Conclusions

It is perhaps less likely that a commission would be established when there are effective and representative political parties, which may prefer to negotiate the principles and procedures for review (most likely through the legislature). A parliamentary committee may then be used to negotiate the detailed provisions. When parties lack clear policies and the degree of public support is uncertain, or when the divisions are ethnic or sectarian, a commission may provide both direction and ideas, and help develop some sort of consensus. It can also give visibility to the process and promote public debates. Its civic education role has often been most significant (as evidenced by constitution-making processes in Uganda [1995], Eritrea [1997], and Kenya [2005; 2010]). A commission is perhaps the most effective way to engage the public. Sometimes it has given shape to the process through its own dynamics, and had played a critical role in the management of the entire process (as in Kenya [2005]). Commissions on special topics, such as fiscal, environmental, electoral, and decentralization issues, often outside the knowledge of traditional constitutional experts, can make important contributions and help constitution-makers avoid errors that may later turn out to be quite costly or administratively problematic. Although it is not indispensable, the use of commissions should be considered by those responsible for designing the process.