3.4.3 Government departments and agencies

In this section we discuss the range of governmental authorities (ministers, and departments and other agencies) that often carry out specialist, technical, coordinating, and support roles in relation to constitution-making processes, which roles may be extensive. They can include taking legal and administrative steps needed to establish constitution-making bodies, providing and managing funding for the process, organizing aspects of the process such as civic education or public participation, organizing transportation and meetings for a constitution-making body undertaking public consultation, providing security, providing legal advice or legislative drafting support, and developing and introducing into parliament laws to implement the constitution. Such roles on the part of a wide range of government authorities can be critically important to constitution-making processes. These roles do not usually involve direct public participation in making decisions about the constitution. They can, however, open the way to attempts to exercise influence, sometimes giving rise to tensions and conflict with constitution-making bodies. Further, government authorities do sometimes participate directly in constitution-making processes, for example through ex officio representation in constitution-making bodies.

Governmental authorities and the roles they play

There are great variations among different constitution-making processes in terms of the extent to which different kinds of governmental authorities carry out specialist, technical, coordinating, and support roles. There are some processes where there is little or no role for such authorities. Examples of these include situations where international actors play the roles in support of the constitution-making process that governmental authorities would normally play. These include situations such as those in Afghanistan, Cambodia, Iraq, Somalia, and Timor-Leste, where conflict prior to the constitution-making process has largely destroyed state institutions. There are also other postconflict situations where, although state institutions may exist, for one reason or another international community support for a constitution-making process extends to providing all or most of the support the constitution-making process requires, as in Namibia.

In the more common situation where government authorities—both political (e.g., cabinet ministers) and administrative (e.g., public service departments)—do carry out specialist, technical, and support roles, the authorities and the roles they play can be categorized in many ways. The following discussion divides them into three main categories.

Box 42. Oranges and bananas – Kenya [2005]

Kenyans were invited to vote on whether to adopt a draft constitution. The main campaigning groups were not political parties, but they were not civil society organizations. The Election Commission had to assign a symbol to the Yes campaigners and the No campaigners—just as they would to parties or candidates in an election. They gave the Banana to “Yes” and the Orange to “No.” There is no reason to suppose that this was other than random. But an orange proved an easier symbol to use than a banana—though both are local fruit. In fact the orange (symbol of the group that won the referendum) inspired the name of a totally new political alliance).

In truth the issues in the campaign were less the constitution than the performance of the government and ultimately ethnic loyalties.

Box 43. Ministers of constitutional affairs

The laws providing for Uganda’s constitutional commission and its constituent assembly (the two main consultative and decision-making bodies in that process) provided key roles for a minister of constitutional affairs, supported by a public service department (the ministry of constitutional affairs). The minister and his department were established in 1986, and largely developed the policy and legislation providing for the constitutional commission and later the constituent assembly. The Uganda constitutional commission statute of 1988 then gave the minister a number of significant roles in relation to the commission. They included roles in the selection, nomination, and appointment of the twenty-one-member commission, determining if the commission should submit interim reports, extending the period within which the commission was required to complete its work, approving employment of consultants or experts by the commission, and determining (in consultation with the minister for finance) the allowances payable to the members and staff of the commission. There was only one mention in the statute of the ministry of constitutional affairs: a provision requiring the funds of the commission to be “administered and managed by the Accounting Officer in the Ministry for Constitutional Affairs.” The constituent assembly statute of 1993 also made provision for important roles for the minister. In addition, it provided for a commission for the constituent assembly, which not only conducted the elections for the 288-member assembly, but was also required to convene its first meetings, provide administrative support for the assembly, and (if necessary) conduct any referendum that might be required under the statute to resolve any contentious issues that the assembly could not resolve. There was no provision in either statute guaranteeing the independence of the constitution-making bodies. Considerable tensions developed among the constitutional commission, the minister, and his ministry. To an extent, this reflected that the establishment of the constitutional commission reduced the public stature of the minister. There were also other tensions, mainly over what the minister saw as the excessive time the commission was taking to do its work, and concerns by the commission about control by the ministry of funding for the commission’s work to a degree that adversely affected that work.

Another case in which special authorities were established to both coordinate and support the constitution-making process was Albania [1998]. A parliamentary constitutional commission was established as the main constitution-making body. A ministry of institutional reform and relations with the parliament was established to assist the commission by organizing the consultative constitution-making process envisaged by the parliament. Lack of financial and other resources saw the minister responsible for that ministry cooperate with several donors to establish an independent agency (the Administrative Centre for the Coordination of Assistance and Public Participation). Its function was to act as a liaison between Albanians and international actors to facilitate the widest possible participation of citizens and NGOs in the process. In doing so it worked in close cooperation with both the constitutional commission and the ministry.

The Albanian arrangements were developed on an ad hoc basis, and were not the subject of statutory provisions. The Uganda arrangements are unusual in the extent of the detail in the statutory provision about the roles of supporting authorities, and in the extension of the roles to the point of giving the minister and his department extensive control of the process. It is more common for existing ministers and departments such as the attorney general or the Department of Justice to provide support roles. Those roles seldom give as much control over a process as was vested in the Ugandan minister for constitutional affairs.

Among the difficulties with arrangements giving government authorities key roles in establishing constitution-making bodies is that those bodies then take center stage. The previously important minister and department are left with little of significance to do. This experience can contribute to tensions between a minister and a supporting department, on the one hand, and the constitution-making body. If the minister retains important powers of control over the constitution-makers (as in Uganda) there is then the potential for conflict over timetables, directions in the work of the constitution-making body, and control of funds and other resources. Where differences over substantive constitutional issues arise, attempts to interfere in the operations of the constitution- making body may occur. In some constitution-making processes, provisions about the independence of constitution-making bodies are included in the statutes or other documents that establish them. In part, such provisions are intended to reduce problems with interference by ministers or other government authorities.

Authorities established mainly to provide support for the constitution-making process

In some processes, special authorities are established to undertake particular roles in establishing, coordinating, and supporting constitution-making bodies in various ways. They can be both political and administrative authorities. Such authorities can sometimes have responsibilities that extend to regulation and exercising a degree of control over the work of the constitution-making body. The laws establishing the main constitution-making institutions for the Ugandan constitution-making process from 1988 to 1995 provide an example.

Preexisting authorities that are given additional roles providing support for the process

In processes where new and specialized constitution-making institutions are required, it is common for authorities such as existing ministers and public service departments to be given the kinds of roles in establishing those institutions that the minister for constitutional affairs carried out in Uganda. In Kenya, for example, it was the attorney general who was required to submit to the president names of nominees for appointment to the Constitution of Kenya Review Commission.

Beyond their involvement in establishing institutions, existing ministers and departments play many other specialist, technical, and support roles. Police departments or other agencies may provide security for the process. The department of finance provides funds and perhaps manages the accounts. The department responsible for government information, and district or provincial administrations, may help provide civic education, and perhaps also help organize public consultation meetings about the people’s views. The department of justice helps the constitution- making institution prepare the constitution-makers, and perhaps aids in analyzing views. The government’s legislative drafting service usually provides the legislative drafter who develops the draft constitution in accordance with the instructions of the constitution-making body. More generally, the public service commission ensures that the constitution-making body is provided with the staff needed to carry out its work.

Sometimes such roles are the subject of provisions contained in the law or other document establishing the constitution-making institution. For example, it is common for statutes establishing constitutional commissions or constituent assemblies to make provisions about public service commissions providing necessary staff. But often the support and other roles are carried out because such work is regarded as part of the general responsibilities of the authority asked to provide the support.

Most, if not all, such roles can be of great significance in a constitution-making process, where the specialized constitution-making institutions will seldom, if ever, have all the resources available needed to operate independently of other governmental institutions. Almost always there is a need for close cooperation with other authorities, both political and administrative.At the same time, the need for support means that outside authorities may gain the ability to block, interfere, and politicize the process. While provisions guaranteeing the independence of the constitution-making body may help, they can seldom solve all potential difficulties.

External authorities that can influence or participate directly in the process

There are various situations where external authorities may influence, or participate directly in, the constitution-making process. An example of external influence concerns government control of appointments to constitution-making bodies. There are situations in which it is accepted that political considerations should determine the composition of a constitution-making body. Examples involve committees of a parliament (whose membership often reflects the numbers of seats that political blocs hold in the parliament) as well as constitutional conferences, roundtables, and peace processes. But when constitution-making bodies purport to be expert, neutral, or broadly (rather than politically) representative bodies, there can be risks in appointment processes controlled by government authorities. In politically charged postconflict situations, processes for appointing members of constitutional commissions, or particular categories of nominated members in constituent assemblies, can readily be heavily influenced by political factors. In the process, the credibility, and often the actual capacity, of the constitution-making body may be damaged.

As for direct participation, sometimes key government agencies have ex officio representation in a constitutional commission. In Kenya, the attorney general was ex officio a member of the Constitution of Kenya Review Commission and of the later committee of experts. (See appendix A.7.) The twenty-one-member Uganda Constitutional Commission included two ex officio members, one a senior army official and the other a senior official in the ruling party secretariat. Similarly, in some instances constituent assemblies have included members nominated to represent government authorities. The 284 members of Uganda’s constituent assembly included ten to represent the army and ten “appointed by the president in accordance with the advice of the cabinet.” Further, the chair and deputy chair had to be elected by the assembly from a list of five names submitted by the president.

The most obvious dangers arising when particular governmental interests are represented directly in constitution-making bodies involve pressure to protect governmental political interests generally, or pressure to protect the interests of particular parts of government (for example, the interests of the army, or of the attorney general, where a senior army officer or the attorney general holds a position ex officio).

Direct participation can also occur through government authorities making submissions to the constitution-making bodies. This can be dangerous, particularly if a government authority making a submission is particularly influential. On the other hand, when submissions of views are encouraged from all sources, it will be reasonable that government authorities use this avenue for seeking to influence the process.

Relations between constitution-making bodies and other authorities

On the basis of the discussion of the roles played by government authorities, it will be evident that the main potential problems concern possible political interference by such authorities in the work of constitution-making bodies. The extent to which such dangers arise varies considerably. There are many factors that may influence the extent of the danger in any particular case.

As already noted, there are constitution-making processes in which political influences can be expected and will tend to be open (e.g., parliamentary processes, constitutional conferences, and roundtables). With constitutional commissions and constituent assemblies, there may be less open political interference, but processes for appointment or nomination of members may lead to such influence being exercised. Whether such influence occurs depends to a large degree on the extent to which both the political and the bureaucratic arms of government are unified, well structured, and organized. Where a government is dominated by a well-organized and tightly structured political party with a clear ideological position, it may well seek to influence any constitution-making process in order to achieve its preferred outcomes. On the other hand, where the ideology of such a party supports democratization, conflict resolution, and peacebuilding, there may be far less pressure to interfere. By contrast, where a country has numerous political parties that tend to be dominated by narrow agendas of their leaders or a narrow ethnic base, there may be multiple motivations driving efforts to influence appointments to and decision-making by constitution-makers.

The following practical suggestions for ways of establishing constitution-making bodies so as to reduce problems in relations with other government authorities have particular relevance to bodies that are intended to be neutral, broadly representative, or expert:

  • Where practicable, when there are provisions for the appointment of members, the founding legal documents should avoid politically dominated appointment processes, and endeavor to provide for neutral or bipartisan processes.
  • Statutes and other foundation documents should provide for the independence of constitution- making bodies from political direction and control, and should also include independence in codes of conduct for members of constitution-making bodies.
  • As far as practicable, constitution-making bodies should be empowered to manage their own resources, so as to reduce the need for dependence on support from other government authorities.
  • In general, statutes and other founding documents should avoid giving ministers and other external government authorities legal control over resources and work programs of a constitution-making body.
  • Where international community actors are providing funding and other support to the constitution-making process, they should do so in ways that encourage and support the independence of the constitution-making body.