1.2.2 Can the constitution-making process be designed?

The notion of designing a process may suggest a high degree of rationality, based on an understanding of the consequences of different possible arrangements. In recent years researchers have been trying to assess, for example, whether a parliament or a constituent assembly is better geared to the task of constitution-making, whether transparency or a measure of confidentiality in negotiations is more likely to produce consensus, whether deadlines should be prescribed for the conclusion of different stages of the process, and, significantly, the consequences of a high degree of popular participation. The research is not so advanced that we can make any predictions with confidence, although case studies are beginning to provide some basis for advice on the design.

Another difficulty is that even if we had enough knowledge to design the process, constitution- making is intensely political, with high stakes for many groups in society, particularly politicians. Constitution-making processes are not so much designed as negotiated. Often there is little scope to control political actors, who seek to dominate the process. There was considerable agreement on the design of the Kenyan process that began at the end of 2000, involving a key role for experts and a high degree of popular participation. However, as the implications of constitution-making for substance (and perhaps also for the growth of people’s consciousness of power) became clear, the agreement dissolved as politicians tried to exclude others from decision-making. In mid-2004, politicians took charge, and the process beginning in 2008 was substantially firmly lodged in the control of the political class.

Furthermore, the process generates its own momentum, popular participation leads to the expansion of the reform agenda, groups hitherto excluded seek representation, and spoilers appear unexpectedly—all of which may place a strain on the original scheme. There may be a selective boycott of the process by an interest group (or even, as in Iraq and Somalia, intimidation of those who engage in the process). A significant part of the process will consist of negotiations, at different levels and at various stages of the process, whose outcome cannot be predicted. The survival of the process may depend on the ability to accommodate these forces or to respond constructively to fresh demands. A sense of the dynamic of the process is a valuable asset.

In designing the process, attention is focused largely on what we may call the “official” process: of institutions created or used for deliberation and decisions, of constituencies and interest groups formally represented, of rules for decision-making, and so forth. But these do not capture the range or complexity of the activities, including lobbying and scheming, that go on outside the formal process. National or foreign civil society organizations may run a sort of parallel process, or aspects of one (such as civic education or the mobilization of marginalized communities; see part 4.1). The international community can play a critical but unscripted role. There may also be a parallel or subterranean “official” process, with all sorts of negotiations among the parties (and others) that have a significant influence on outcomes (e.g., in respect to Japan’s post-World War II constitution, or the United States’ informal, sometimes clandestine, pressures in Afghanistan and Iraq). The official process cannot, and perhaps should not, try to encompass all these groups and activities, but some of them have the potential to undermine or delegitimize the fundamental principles, objectives, and procedures of the formal process, and point to the limits of national sovereignty in safeguarding the process.


1.5 Assessing the impact of the constitution-making process

The processes of constitution-making described in this section are of recent origin, a response to the circumstances outlined above. There is not enough research on the impact of the processes in terms of reconciliation, permanence of peace, empowerment of the people, consolidation of democracy, growth of social solidarity, or economic prosperity. With the expansion in the scope of constitutions, especially those with ambitious social and economic agendas, the stakes in their orientation and content have increased and the processes can in these circumstances easily become contentious. There can also be tension for constitution-makers between pleasing the international community and pleasing local interest groups. There is little doubt that such processes introduce the people to a host of political and public issues and provide some education in the mechanisms of the state. But this knowledge is often fragmentary and subject to various interpretations, some clearly spurious and intended to mislead rather than inform. It is therefore necessary to have safeguards against blatant abuse, and oversight by watch bodies. Close attention should be paid to the dynamics of the processes. Correct information and honest analyses of the issues should be provided. The succeeding sections of this handbook address these matters.


1.6 Who does what? A table

Table 2 shows how the tasks that are carried out in a constitution-making process identified and discussed in part 2 may be performed by the variety of bodies and institutions identified and discussed in part 3. It is not necessary to have a particular body to perform a particular task. In the course of this handbook we may sometimes suggest that a certain body is often more suitable than another for a specific task. But we are conscious that national traditions, time and financial pressures, and other factors may limit the choice in a given country. The table is not a prescription—it is merely meant to clarify the relationship between the tasks and the institutions.

To take a few examples from the top rows of table 2:

  • Preparing a road map or timetable for a process could be done by a constituent assembly (if that assembly were in charge of the process). Where a constituent assembly does not exist, or comes late in the process, the road map may be prepared in a law or by the legislature, or it may have been specified in a peace agreement or a “roundtable” process or by the government. Often, civil society and political parties (and sometimes the international community) will have some input—though they do not have the power to make a legally binding road map.
  • Generating ideas for the new constitution is something in which all sectors of society can participate.
  • Developing guiding principles for the process and content of the constitution may be done in different ways. Sometimes a constituent assembly has done this near the beginning of the process. Sometimes principles are laid down in law, or through political agreement (in a peace process or by political parties); civil society again may participate.

 

Table 2: Who does what?

Tasks
Constituent assembly
National conference
Legislature
Roundtable
Constitutional commission
Other bodies
Peace process parties
Special bodies
Experts
Electoral management bodies
Governments and their departments
Courts
Referendums
Civil society
Political parties

Starting the process

            n       n     n n

Road map

n n n       n   n   n     n n

Generating ideas

n n n n n n n n n   n     n n

Guiding principles

n n n n n   n   n   n     n n

Civic education

n n n   n n     n n n     n n

Consultation on draft

n n n   n n     n n n     n n

Other forms of consultation

  n n   n n n               n

Making submissions

            n       n     n n

Receiving and processing views

n n n   n n   n n n n   n n  

Resources management

n n n n n n   n n n       n  

Managing media

n n n n n n   n n n   n      

Managing international actors

n n n n n n   n n            

Making procedural rules

n n n n n n   n     n        

Determining agenda of issues

n n n n n n n n n   n     n n

Making choices on issues

n n n n n n n n n   n   n n  

Dealing with divisive issues (special bodies)

              n       n n   n

Ensuring technical coherence

                n            

Preparing concrete proposals

n n n n n n     n   n        

Technical drafting of text

                n            

Adoption of constitution

n n n n               n n    

Implementation

    n           n   n n   n n

Dealing with problems

              n     n n   n  

Monitoring and evaluation

n n n   n       n   n        

Responding to failed processes

    n n n           n     n n

1.3.1 The importance of a design

The design of the process has a number of components. The principal focus is the method whereby the constitution is made and enacted, which includes the key actors and forms of representation and the mode of enactment. But it might also include interim arrangements intended to operate until the new constitution comes into effect, the objectives and principles determining the content of the constitution, the different stages of the process, and the management and funding of the process. The design also acts as a road map or timetable, setting out the sequence of and deadline for the activities and decisions leading to the adoption of the constitution. The precise scope of the design varies from one experience to another: some are minimalist (as in Cambodia [1993]) and others are quite detailed (as in Uganda [1995] and Kenya [2005]).

The design can take many forms. It usually involves an agreement among the key actors (principally political parties), legislation (standing alone or as part of an interim constitution), or an international agreement or treaty (in which case it is likely to be part of complex arrangements, including a cease-fire and the establishment of peace). The greater the consensus on the process, the higher the chances of success (although, as we have already noted, the process produces its own dynamics that can call into question aspects of the process).

Constitution-making processes have been designed in various ways. During decolonization, the colonial power sets up the process. A most elaborate process, in terms both of procedure and of substance, was imposed on India [1950] or the making of its independence constitution—to which India’s Congress Party reluctantly agreed. However, after the creation of Pakistan, Indians were able to simplify the process. In the post-Independence period, often the process is decided by the government, sometimes after discussions with relevant groups (e.g., in Tanzania in 1965 when it became a one-party state, in Zambia in 1991 when it moved away from a one-party state, in Uganda in 1982, in Ghana in 1992 and lastly in Nigeria in 1979, 1989 and 1999. The Iraq process [2005] was designed essentially by the United States, which was an occupying force (although it made certain important concessions to local groups).

Frequently the process would be negotiated among political parties (as in South Africa [1996], Fiji [1997], and Kenya [2010]) or a larger range of interest groups (as in the francophone states in West Africa through national conferences). Increasingly, in conflict and postconflict situations, the decision on the design is part of a complex set of arrangements, including a cease-fire, disarmament, and integration of the armed forces.

The design is often made by parties engaged in conflict. Nepal in 2006 was unusual in that an agreement was made without outside intervention. Mostly, agreements on the process in these situations have involved the international community in significant ways. A prime (if somewhat unusual) example is Bosnia-Herzegovina [1995], where the constitution itself was made by the international community in an army barracks in the United States—there really was no process. Usually, the design (or at least its outline) is made at international conferences or through international negotiations (as in Afghanistan and Cambodia), or under intense mediation by the dominant interested states, mostly Western (as in Sudan, the states of the former Yugoslavia, and Kosovo). The Somalia process was agreed to through the mediation of the Intergovernmental Authority for Development with facilitation by the Kenyan government in 2004.

Not surprisingly, the principles and degree of detail vary depending on the context and the primary parties involved. The process is most detailed when it is negotiated locally, and is sparse when the international community is involved. (Sudan seems to be an exception.) A smaller role is played by experts when the international community is involved. The question of the ownership of the process is implicated in the mode of decision-making on the process, as is the degree of engagement of the people.

There are considerable advantages to a designed process. It is an important way to identify the key actors and to inform the public of the objectives and the road map, including their own role. It provides guidance on procedure and timing to those in charge of the management of the process. It can minimize disputes about the respective roles of actors. It can give an indication, at least, of the resources needed. The rules for the drafting and adoption of the constitution often influence the outcome of the process in terms of its legitimacy and of the orientation and content of the constitution. It may be the case, for example, that when political parties dominate, greater attention is paid to the system of government. And the more participatory the process, the more aspirational the constitution is likely to be.


1.4 Tasks and responsibilities in constitution-making

Constitution-making has thus become complex, involving a number of tasks and stages andthe proliferation of actors and institutions. An essential component in designing a process is to review the tasks and decide how to allocate them and obtain the resources needed to carry them out, and the sequence in which the tasks are undertaken. Subsequent sections discuss in some detail the options available for each of these issues, and some of the main tasks often undertaken as part of a process.

If the constitution is made in settled times, there are many options for the process, including a high degree of public participation. If the country is coming out of internal or external conflict, there may be an inclination toward a more controlled process, with limited or no public consultation. Increasingly, negotiations held during an ongoing conflict take the form of a constitutional settlement. In this case the process is confidential and often secret, and almost completely dominated by leaders of “warring factions,” with little room for wide public participation.


1.4.1 Resources

Constitution-making cannot, these days, be done on the cheap. The process as described below costs a great deal. Many countries that seek to make a new constitution and a new start have come through a long period of conflict, their resources depleted or appropriated by warlords, the economy shattered, facing pressing poverty and an empty exchequer. It is necessary at an early stage of planning the process to pay careful attention to the financial implications and the means of raising sufficient funds. All people are entitled to a fair, participatory, and effective process, but not every country can afford it. It is often possible to get external assistance in the form of money, equipment, and personnel, but that may be achieved at the loss of some national control of both the agenda and the process. Ways must be found to minimize costs whenever possible. Sometimes the ambitious goals of the process must be scaled down. However, if the design of the process is good and efforts are made to avoid wasteful expenditures, the international community is likely to assist. An early estimate of the costs should be made so that the process can be realistically planned and efforts to secure support from external sources can be initiated.


1.4.10 Debating the draft constitution

It is becoming common to allow time for public scrutiny and comments on the draft constitution before it is approved by the assembly. (“Assembly” here is used to refer to the body that makes the decision on adoption, even if the adoption is subject to a referendum.) The advantage of this practice is that the public can react to a concrete and comprehensive set of proposals, and assess with some confidence its significance for them and the state. If there has been opportunity for prior public consultation, they can now judge to what extent their views have been taken seriously. The period of public consultation can also be seen as a chance for “peer review,” an examination of the document’s strengths and weaknesses, and the opportunity to correct policy and drafting errors. (Some countries have invited experts to review the draft: Timor-Leste [2002], Afghanistan [2004], Nepal [ongoing process], and Zimbabwe [2000].) If political parties or the general public are divided on some issues, here is another chance to build consensus, although there is the danger that during this period fresh differences may emerge (as they did in Kenya [2010]).

It is important to ensure that the public is correctly informed about the contents of the draft and allowed to make an assessment of it. Here civil society and academics can play a vital part. It is surprising how ill-informed debates on draft constitutions and proposals can be; politicians, but not only politicians, have a tendency to make pronouncements without bothering to read the draft. (See the discussion of civic education in part 2.2.2.)


1.1 The role of a constitution

An understanding of the role of a constitution is critical to designing the process for making it. And the process is not only for making the constitution but for generating or creating the environment, promoting the knowledge, and facilitating the public participation that are conducive to a good constitution and to the prospects for implementing it. We therefore begin with a short discussion of the importance and role of the constitution.