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.


3.3 Administrative management bodies

In many processes, the administration and management of the process have been afterthoughts and have been handled in an ad hoc fashion. This has led to confusion and disagreements about who does what—and even to the failure to perform key tasks. Because of the dozens and even hundreds of tasks that need to be coordinated and managed, some form of an administrative management body is usually needed. (See part 2.1 for examples of the range of tasks this body may handle.)

For the purposes of this handbook, we have used the term “administrative management body” to take into consideration the wide range of experiences of administering and managing the process. We have defined an administrative management body broadly to include any organization, business, institution, committee, unit, or small group of administrators that implements the policies and plans of the constitution-making process and provides technical support. Such a body can range from a two- to three-person management committee for an uncontroversial reform process to a secretariat with hundreds of staff members to support a participatory process. In this section we discuss how these bodies are established, their roles and powers, who directs them, and how they are structured and managed.

Establishing the administrative management body

A decision should be made at an early stage about whether a new administrative management body should be created or whether an existing body can serve the purpose, and when to establish the body. In countries with a standing parliament, the secretariat or a similar body sometimes becomes the administrative management body. In Brazil [1988], the senate’s information and data-processing center, which supported the standing legislature, also supported the constitution- making body. While this may be convenient, there can be drawbacks. The existing body may not have staff members with the skills required, such as civic educators. The staff members are also responsible for sensitive tasks such as analysis of the public views and the technical task of drafting the text. There may be questions about the degree to which government actors in general can maintain a position of impartiality toward all interests, groups, and individuals. In South Africa [1996], some constituent assembly members viewed parliamentary staff who had served during apartheid with deep suspicion. If the constitutional reform is noncontroversial and parliamentary staff members are sufficiently qualified to support the process, this can be aconvenient option (as in Finland [2000]).

In postconflict countries there may not be any existing institution able to serve the function of an administrative management body. In both Afghanistan and Timor-Leste, a new secretariat was put in place before the main constitution-making body to hire and train staff, plan activities identified in the mandate, and handle any procurement, infrastructure, or logistical tasks needed to prepare for the process. In a context where infrastructure has been destroyed and both human and material resources are scarce, simply finding office space and hiring staff can be time- consuming. Designers of the process need to plan sufficient time to get the administrative management body up and running in these situations.

In some processes, multiple administrative management bodies have been established. In Uganda, a secretariat supported the Uganda Constitutional Commission from 1988 to 1993 and was disbanded and replaced by an entirely different secretariat that supported the work of the constituent assembly from 1993 to 1995. However, in processes that engage in civic education and public consultation and use more than one constitution-making body, having a single administrative management body can more effectively ensure continuity and coordination of all the “moving parts.”

Administrative management bodies have hired or been linked to external organizations, ministries, or businesses to assist with some of their core tasks—in particular, civic education. The tasks can also be divided among more than one body. In South Africa [1996] the logistics, catering, flights, and accounts were managed by the Independent Business Council—a local business-sponsored nonprofit organization regarded as politically neutral. In Zimbabwe [ongoing] the secretariat linked with advertising agencies to assist with producing public information materials. An administrative arm of the constituent assembly was also established to manage research and drafting as well as tasks associated with public participation. In Afghanistan [2004], the secretariat performed all tasks except for finances, which were handled by the United Nations Development Programme.

Depending on its role, the administrative management body may need a certain level of independence from the executive arm of government (including the cabinet, ministers, and public service management bodies). Otherwise it risks being perceived as biased in favor of governmental interests.

Role and powers

Generally, the leaders of the constitution-making body (such as an executive committee, or government actors) make policy decisions, and the administrative management body plans for and implements these policies. For example, a constitutional commission may decide that civic education and public consultation will be held in all regions, and then the administrative management body implements the decision. In practice, the role and powers of the constitution- making body and the administrative management body (if separate) may not be clearly defined by law or any other means.

A lack of clarity regarding roles and powers has led to serious tensions. In Timor-Leste, the secretariat to the constituent assembly did not have a clear mandate or reporting lines. This resulted in the president of the constituent assembly firing the first director for making decisions that the assembly members felt were beyond her authority.

Directing the administrative management body

The director should be impartial and independent of government and parties or other key stakeholders. The chairperson of a commission or constituent assembly can also direct the administrative management body (e.g., as was the case in Eritrea [1997] and Kenya [2005]).

Box 40. Nepal [ongoing process]: A poorly planned management structure

The constituent assembly in Nepal in 2008 set up several committees to handle different tasks, but without an overarching coordination mechanism. There was a secretariat that provided limited administrative support but that did not resolve the disagreements among the committees about which was to do what and when. This led to planning problems such as launching a public consultation process without a strategy for how the thousands of views would be analyzed and shared with the assembly members.

There are potential drawbacks associated with a chairperson directing both the political tasks of the process and the day-today administration and management tasks:

  • A chairperson or president of the constitution-making body is typically chosen to lead the constitution-making body because of his or her political skills or acceptability to all key power brokers. He or she may not have the requisite management skills also to direct the administrative management body.
  • The chairperson or president of the constitution-making body will have significant responsibility for overseeing the political and intellectual tasks of preparing the constitution; the administrative and management tasks may become a distraction from this role, or he or she may not pay the administrative and management tasks enough attention.
  • The chairperson or president of the constitution-making body may not be impartial, and may manipulate the outcomes of certain tasks so that they favor his or her party or group. For example, he or she may ensure that the analysis of the public consultation process favors his or her views and interests.

For these reasons, it can be helpful for the director of the administrative management body to be someone who is not a member or leader of the constitution-making body. He or she can then be hired, seconded, or appointed specifically for his or her management expertise and acceptability to all stakeholders. Headhunters have been used to find experienced and acceptable managers. Some designers of the process have held wide-ranging public consultation to ensure that the director was acceptable to all key stakeholders. It may take considerable work to identify the right person.

If no local actors are appropriate, foreign foreignactors could be an option, but ideally their role should be to mentor local actors. In Timor-Leste [2002] the secretariat was headed by a Brazilian, through the United Nations. Relationships are likely to be more delicate if the administration is foreign, or partially so. In many countries there is little experience of constitution-making and sometimes even little experience of constitutions. National participants may lack self-confidence; at the same time they have been given an important responsibility. Careful management is necessary to ensure that national participants feel respected and in charge of the process, even if their management experience is limited. It may be hard for experienced international managers to watch things being done inefficiently, but in the long run it is likely to be counterproductive for them to try to take things over. There can also be charges of undue international influence. At least in Timor-Leste, a local actor could have been found to do the job just as effectively or more, and an opportunity was lost to develop local capacity.

The director typically reports to the leaders of the constitution-making body, but he or she could report to the executive or some other governmental body if the constitution-making body is not independent. Here are some of the conditions that lead to tensions between the leadership of the constitution-making body and the director of the administrative management body (if they are different persons):

  • The director is not involved during the decision-making process and is directed to implement policy decisions that are not feasible because of lack of resources or time, or logistical constraints.
  • The director of the administrative management body may make decisions that do not reflect or support the policy decisions of the constitution-making body or other relevant body.
  • The powers, duties, and reporting lines may be unclear, which can lead to confusion about what has been decided and what is being done. For example, in Afghanistan, the director of the secretariat had reporting duties to the United Nations, President Karzai, and the chair of the constitutional commission. At times each would direct him differently and he had to manage these tensions. In particular, the chair assumed he could make decisions about establishing the Constitutional Loya Jirga although he had no formal role and was not involved in the decision-making process being guided by the executive and the United Nations.
  • Corrupt members of the constitution-making body may try to influence the director to provide additional resources to them, or to give contracts to family members. Or members will simply demand a role in procurement and budgetary decisions. The legal mandate or a code of conduct could specify that members should not be involved in procurement or budgetary procedures and specify the powers of the director in this area, as well as how oversight will be provided. (See part 2.3.3.)
  • The administrative management body may be requested to resolve tensions or disputes between the leaders or members of the constitution-making body that could jeopardize its role as an impartial provider of technical and support services (e.g., Albania [1998]).

Clear reporting lines, powers, and duties, as well as regular meetings between the director and the constitution-making leaders to discuss issues as they emerge, can resolve some of these tensions. Other problems will simply require strong diplomatic skills. A mechanism should be established that would allow the director to report corruption or conflicts of interest on behalf of constitution-makers attempting to influence administrative and management decisions.

Creating specialized units or departments

An administrative management body that undertakes a number of complex tasks is often divided into specialized departments or units named after each core function. There is no preferred model for how to structure an administrative management body. Funding and the availability of resources will place limitations on the number of departments and positions that the body can afford, if any.

In South Africa, the constituent assembly administration was led by a directorate (with an executive director and two deputies) that oversaw the following departments: the secretariat, the law adviser’s department, and the research, finance, administration, media, and community liaison departments (the last of which also handled civic education and public consultation). Some of the departments also hired consultants to assist them, such as external evaluators and caterers. Many administrative management bodies have also included field offices to assist with outreach to the rest of the country (as in Eritrea [1997], Afghanistan [2004] and Kenya [2005]).

Here are some generic potential departments or units, with brief descriptions of what they might do. The list is not exhaustive in terms of the departments or their functions; it is a tool to assist in planning for what may be needed to administer and manage a complex process.

• Office of the director—implements policy, manages all units and field offices, and ensures that all tasks are carried out in a timely, ethical, and professional manner. Reports to the constitution-making body or other body as specified in its mandate.

• Personnel—assists with recruiting and hiring staff, develops or adopts any needed staff policies, develops job descriptions and terms of reference, sets salaries, and helps with any problems that arise.

• Financial administration—prepares the budget and maintains all budgets for donors, ensures that budgets are spent according to donor or governmental requirements, prepares necessary financial policies or procedures and trains the staff as necessary to adhere to policies and procedures, oversees cash-flow projections, approves all cash and wire transfers and maintains cash, controls and tracks expenses, prepares and makes payments for payroll, reports on how the funds are used, and works with external auditors as needed. Engages with and coordinates

donors, responds to donor queries, writes or coordinates donor reports, and advises on compliance with donor requirements.

  • Administration—manages large conferences or other bodies, and organizes all interpretation and translation services, printing services, secretariat (minute taking, secretarial services) and general services, infrastructure, logistics, and procurement.
  • Communications and outreach—is responsible for civic education, public consultation, and media and stakeholder relations. One manager should oversee these three interrelated tasks because careful coordination is needed so that each task is carried out in a timely way. For example, media campaigns and civic education should precede and support a public consultation meeting.
  • Security—advises the director on security issues and creates, if necessary, basic security procedures or adopts those of a similar institution already established; creates and enforces safety procedures (specific protocols for travel to insecure areas, communication, fire, bomb threats and detonations of explosive devices, gunfire, theft, physical assaults, health issues, and evacuation); establishes liaisons, where appropriate, with national police, local security personnel, intelligence units of the national government, peacekeeping forces, embassies, and other relevant actors to ensure security at various events or at the main constitutional bodies; produces regular security briefings where necessary; and manages hired or seconded security staff and other security officers.
  • Legal and research department—drafts constitutional provisions and other documents as instructed by the constitution-makers (the administrative management body may or may not have responsibility for drafting), maintains the official electronic version of the draft constitution in a secure environment with version control, researches requested issues, and advises on all legal questions or aspects related to the draft constitution as well as issues relating to rules of procedure or any codes of conduct or other legal issues. Could also assist with the public consultation process and analyzing, collating, and reporting on the views of the public.
  • Archiving and documentation—prepares guidelines and procedures for documenting the proceedings; establishes a system for sorting, coding, storing, and archiving text and nontext- based materials, including committee meeting minutes, reports, voting records, audio and video recordings, and photographs. Also may handle collecting, collating, and entering into a database all of the public views gathered, and transcribing oral views.
  • Information technology—advises on the technical needs for the process and provides computer services and maintenance, network services, user support and training, data processing services, and technical solutions. This may include supporting an election or voting process, creating the system for entering into a database the public’s views, or helping establish an official website for the process.
  • Capacity development—assesses the skills needed to carry out all core tasks and plans and conducts training to ensure that all staff members are adequately prepared to perform their roles.
  • Field-office coordination—assists in establishing field offices and coordinates with all other departments and units to ensure that the field offices are supported and linked with the head office. Communicates regularly and visits field offices to ensure proper functioning.

The departments can be subdivided or combined in any number of ways. Some specialized tasks could also be outsourced. (For a discussion of how these tasks should be administered, see part 2.3.)

The need for an organizational chart

An organizational chart for larger processes is useful when defining the lines of authority and reporting, both within the administrative management body and between it and the constitution- making body or any other body or institution to which it reports. Regardless of how it is structured, it will be important to view the organizational chart as flexible, depending on what is needed at any given phase of the process. For example, departments may need to be expanded, reduced, or added.

Practical tips

  • Establish the administrative management body early enough in the process so that the staff members are not scrambling to try to support a process with too little time to do all the required tasks—in particular, civic education and public consultation.
  • Create well-defined mandates, duties, and reporting lines as well as organizational structure.
  • Schedule regular meetings between the director and the leaders of the constitution-making body as well as between the director and the staff to ensure that proper coordination and communication are ongoing.
  • Allocate sufficient resources and funds to the administrative management body.
  • Don’t usurp the work of the constitution-makers. It is better that the administrative management body try to work with the actual constitution-makers rather than against them. It is likely to be more effective to try to bolster their self-confidence and make them feel that they are in control of what is happening and the document that will emerge is their document, so they have some pride in their work. Otherwise there is the risk that they will rebel and may simply not turn up.
  • Be transparent. In South Africa, journalists were invited to sit in on the administrative management body’s planning sessions; others have posted their budgets and work plans online.
  • Consider the level of independence for the administrative management body. Structural independence can be provided for in the legal framework establishing the mandate, but it can take many forms, depending on the context of the process.
  • Create an impartial administrative management body. The public should trust that the administrative management body will not unfairly advantage any group, political party, or governmental interest but will seek to balance all interests to the greatest degree possible. The director should not express opinions on or promote particular constitutional or political agendas or accept gifts from any stakeholders in the process.

3.4 Specialist or technical input institutions

An undertaking as complex as making a constitution inevitably involves a large number of specialist bodies and individuals. Here we look at aspects of arrangements as experts (who may come as single “spies” or in battalions), bodies that run elections and referendums, government departments, and courts. In the previous section, under commission and committees, we noted briefly that special committees may be constituted or used in constitution-making processes.


3.4.1 Experts

History

Experts play critical roles in constitution-making. But the roles have changed over a long period, as have the types of experts. The roles depend to a considerable degree on the relationship of experts to the constitution-makers. Until recently, lawyers, often academic lawyers, played a central role. They would draft constitutions on behalf of monarchs. With the rise of parliamentary institutions, the role of experts became that of advisers to political parties, who made the final decisions. During the decolonization period, academics in the metropolitan states would be recruited to advise on, and often draft, the constitution. Sometimes the whole process would be dominated by the expert, within the overarching aims of the colonial power or the newly emerging elite. With the shift to mass participation, the locus has moved, not disregarding experts but reducing their role increasingly to technical matters. Mass politics and mass participation have dented the mystique of experts and their monopoly on knowledge.

Changing roles of experts

The roles and types of experts have also changed with the changing nature of the constitution. The contexts of constitution-making have altered significantly in the last fifty years or so (after the wave of decolonization). Many constitutions have been made in the wake of, or to settle, internal conflicts. In such circumstances, the skills of the traditional adviser, whom we may call the “generalist,” covering all aspects of the constitution, were not sufficient. The specialist entered the field. The need for specialists increases when the constitution-making process is embedded in complex processes of peacebuilding and the sharing of power (as in Bosnia- Herzegovina, Northern Ireland, and Sudan); they must address such issues as what to do with weapons disposal, merger of armed militias, return of refugees, and transitional justice. There are now competing theories of how peace and harmony are to be achieved, and of the negotiating process (each with its special jargon). Some constitutions, in the post–Cold War period, aimed at democratization, have been dominated by theories of transition to democracy.

Another change is in the scope of constitutions. The lawyer-generalist sufficed when the focus was on systems of government, informed by the theory of the separation of powers, particularly the independence of the judiciary, and occasionally the protection of minorities, restricted to civil and political rights. The lawyer-generalist was often not well versed in the policies or intricacies of electoral systems or the politics of ethnicity, the complexity of land issues, or concerns with social justice. For the most part these were omitted from the constitution and left to the political process. Today people look to a constitution to solve a myriad of political and social problems, including representation (of women, the disabled, minorities), exclusion (when the state is dominated by one or two communities), social justice (perhaps through affirmative action), power sharing (including decentralization), identity (particularly in multicultural states), social reforms (for example, addressing oppression within society), environmental sustainability, accountability of security forces, and tighter financial and budgetary processes. Increasingly these require specialist knowledge, and so the range of experts who become involved in advising on the constitution has increased exponentially. And the coordination of these experts becomes critical.

A further development is the enlarged role of the international community (defined to include participation of other states, regional or international organizations, and international NGOs) in national constitution-making processes. This may come about because of the collapse of a state or other serious circumstances that require international help and assistance (such as in Cambodia [1993], Bosnia-Herzegovina [1995], Timor-Leste [2002], Afghanistan [2004], and Kosovo [2008]). The role of the foreign expert has been facilitated by the desire of some countries to play an international role, the emergence of international norms whose incorporation in a constitution is deemed to require specialist help (indigenous peoples’ rights, gender issues, environmental sustainability, transitional justice), and the rise of international NGOs, funded mostly by Western governments, which can be sustained only if they generate business. International institutions such as the United Nations Development Programme also seek to play a role. Consequently a class of professional experts (as opposed to other types, who are at best part-timers) has arisen, assuming the dimensions of an industry, with an interest in conflict.

The internationalization of constitution-making processes also means that experts come from many different legal traditions. Few are comparative lawyers; certainly few common lawyers know much about civil law systems, and the converse is also true. This may make it difficult for them to work well together, because approaches, concepts, and preferred institutions may vary among them. A commentator on the Dayton process for Bosnia-Herzegovina noted the clash of legal traditions and styles, and said that cultural differences among lawyers (some from the United States, some from Europe, some from the Balkans) slowed the drafting but also allowed ideas to be examined carefully and provided for cross-fertilization among traditions while keeping Yugoslav notions foremost (O’Brien 2010: 337).

Presumably the varied background of experts matters less in more technical areas such as security, environment, and electoral systems. The role of experts has also been greatly affected by the rise of the participatory process. No longer is it the case that experts are invitees of the government. International agencies bring their own experts, without clearance from the government. Many experts come on the invitation of local NGOs, but they are usually funded by grants from outside. Both special groups and individuals consider that they have the necessary expertise to negotiate and decide on constitutional issues; many want to draft the text. These groups and individuals do not generally operate under the auspices of political parties, and thus it is difficult to bring them under “control.” The tendency to usurp the role of experts

is accentuated if the legislature or the constituent assembly sets up thematic committees for decision-making. And there is serious danger of poor drafting and an overall lack of coherence in the document.

Functions of experts

Experts perform different functions. Some transmit foreign examples, in the hope that there is something to be learned from what has occurred elsewhere. (An advantage of this is that the experts do not need to show any knowledge of the local scene—but they should be careful not to suggest that institutions from other countries can necessarily be copied, and their listeners should scrutinize those experiences carefully.) Some perform a more exalted role; they may be experts in conflict resolution. Some play their most effective role as negotiators (often in postconflict situations). In South Africa, apart from experts brought in by local groups, the constituent assembly appointed a panel of local experts to advise it on interpretations of the draft constitutions and to help resolve differences, particularly on legal issues. Frequently experts’ views are sought on a draft constitution before final revisions and adoption (as in Eritrea, Kenya, Nepal, and South Africa).

Experts, particularly perhaps generalist lawyers with a range of legal knowledge, can play a useful role if they have a good understanding of the local context (including culture) and can establish a good rapport with their clients (for more discussion of such issues see the discussion of foreign advisers more generally, in part 2.3.6). Sometimes parties who are negotiating an issue are not really well acquainted with the issue and are afraid to take a position, which they fear will disadvantage them. If the other party suffers from the same syndrome, negotiations can be complicated, drawn out, and bitter—full of suspicion. But if each party has an expert whose advice it respects, a lot of issues can be addressed, leaving the critical questions to be resolved at the level of principals. South Africans used experts from political parties to great advantage in this way.

Some experts come for a specific task: for example, “Tell us what electoral system will ensure that more women or more marginalized groups or more persons with disabilities can be elected to the legislature.” Or “What shall we do about land?” Some advise on how to plan and administer civic education, or analyze public views given to the constituent assembly. Some may be asked to advise on the actual design of the constitution-making process. Many experts may appear only as speakers at workshops. A useful role for experts may be at the start and at the close of the process, the former for an idea of what may be entailed in a good process and some useful comparative perspective, and the latter for comments on the draft constitution before it moves to final approval and ratification. Sometimes experts can be of great help when the issue is either controversial or complicated (such as devolution or federalism); here a panel of two or three experts may show the way forward as well as warning of risks and dangers.

Some experts are closely associated with decision-makers, as advisers to political parties or to the constitutional commission or the constituent assembly. Others operate at the periphery, nested in a local or international NGO. Many come unsolicited, often without a clear role, and offer their services on arrival. Some experts are part of teams and some operate on their own. A foreign expert backed by her government may enjoy privileged access to decision makers.

Local versus foreign experts

In recent years, foreign experts have begun to play an important role in advising on constitutional issues. At the same time, the number of nationals with knowledge of comparative constitutions has increased. What are the comparative advantages of foreign versus local experts?

Sometimes foreign experts are seen as better able to provide objective advice. When Malaya’s independence constitution was to be drafted, agreement seemed difficult due to local political differences. Consequently a panel of international experts was set up to make recommendations, which were largely, but not completely, accepted. Similarly, Namibia’s constitution was drawn up, at the request of the constituent assembly, by three foreign experts, within a broad set of principles agreed to among the political parties. The foreign experts were South Africans who were acceptable to all key political and other interests. In 1996, when Fiji had to draw up a new constitution, the process was held up for several months, as one side wanted a person to serve as chair of the constitutional commission, but that person was distrusted by the other side; progress was possible only after an agreement was reached on a foreign dignitary to serve as chair. And in a situation such as Sri Lanka before the government unleashed an all-out war on the Liberation Tigers of Tamil Eelam, or in the negotiations between the two parts of Sudan, the role of foreign advisers (at the political and technical levels) seemed inevitable. Since the 2008 political election violence in Kenya, most commissions established under new processes intended to resolve deadlock on constitutional and political issues have included foreign members in order to provide objectivity and impartiality.

If experts are sometimes necessary, it is also generally more important for them than most other categories of foreign advisers (see part 2.3.6) to be well informed about local history and contemporary circumstances. Those who are not attuned to local circumstances may tend to rely on what they feel has worked successfully in other countries, in which case some local factor of critical importance is likely to be overlooked. The chances that there are solutions that will work universally are slender. Local experts would generally have a better understanding of local circumstances and nuances. Third World experts, who would have a better understanding of local social and political circumstances, have been not favored by international agencies, much less Western governments.

Practical tips

Experts have important roles to play in constitution-making and implementation processes. With increasingly participatory processes, it is necessary to work out the precise role of experts and the modality of their contribution and participation. The role of the generalist (often a lawyer) as a person to integrate different inputs and ensure the coherence of the constitution needs to be recognized.

With the proliferation of “experts” and their sponsors in some processes, it has become evident that control and coordination become necessary, although neither is easy. Competition among states and international organizations to provide experts (and advocacy of their national models as the answer for another country’s problems) has often undesirable consequences. And to increase the usefulness of foreigners, the suggestions made in part 2.3.6 in relation to foreign advisers generally should be applied with rigor (that is, such foreigners should either already have extensive knowledge of the local context or be required to take courses or be given prescribed readings in local social, political, and constitutional history, demography, and economics. (For more on the role of the international community, see part 4.)


3.4.2 Electoral management bodies

Elections are managed by different bodies, sometimes by a government department and, increasingly, by separate bodies. There are basically two models of electoral commission: those that are designed to be independent of government and parties (a bit like courts), and what might be described as “balanced” commissions, in which each major party nominates members.

Usually the same body will have responsibility for any referendum; indeed, some bodies are officially named “commissions for elections and referendums.” In Ireland there is no electoral commission, and a separate commission is appointed every time a referendum has to be held. In some countries—usually in the civil law tradition—the courts also have some responsibility in connection with elections, including certifying the results.

An electoral management body may find itself involved in a constitution-making process:

  • when an election is needed for a legislature that will have the task of making a new constitution or for a constitutional assembly with the sole task of making a constitution; or
  • to conduct a referendum on either the adoption of a whole constitution or one or more specific issues.

If the electoral management body is a “balanced” body, designed to be fair to all parties, it may not be the most appropriate body to carry out these functions, especially if elections for the constitutional assembly are not to be conducted on ordinary party lines.

Election issues

The first resembles the ordinary work of an electoral management body. However:

  • the timetable may be different from that applying to normal elections;
  • the electoral system may be different;
  • those entitled to vote may be different for a specifically constitutional assembly (for example, even if nationals overseas are not usually able to vote, the diaspora may be entitled to vote; in Kenya [2010] prisoners could vote); and
  • civic education on voting for a body to make a constitution may present different challenges.

Because of the historic importance of a constitution-making process, an electoral management body might be able to get more assistance (indeed, might find more assistance thrust upon it) than is available for a regular election.

Box 41. An election for a constituent assembly

In 2008 Nepal elected its constituent assembly—to make a new constitution, and also to be the national legislature. The challenges that faced the electoral commission included:

  • the commission itself being totally new, the old one having been viewed as consisting of supporters of the old and discredited regime, and disbanded;
  • the need to register new voters;
  • the need to operate a new electoral system (with not only 240 single-member constituencies, as in the past, but 335 members to be elected through party lists);
  • political maneuvering, which meant that the details of the system (including numbers of seats) changed perhaps three times; and
  • the need to carry out voter education that recognized that this was about a constitution (but would also lead to the formation of a government).

The elections were postponed twice, once because the commission felt it was not ready. When the election was held, a huge number of ballot papers had to be printed in a short time. (About forty million were printed.) And this election having been part of an internationally monitored peace process meant that there was great international interest, and all sorts of foreign advisers.

Referendum issues

Some countries have had referendums only on new constitutions. In some ways organizing a referendum may be simpler than running an election: the whole country may operate as one constituency, and the ballot paper may be simple. On the other hand, the range of actors in the campaign may be quite different from that involved during an election campaign. Parties may not be organized for a referendum campaign. Even if they are, there may be many other groups that wish, or are permitted to campaign that would not do so in an election situation. The Kenya [2005] referendum campaign demonstrates some of these issues.

There will likely be a separate law that deals with administration of referendums. Conducting a referendum may be quite different from conducting an election. Instead of being asked to choose between individuals and parties, the electorate is asked to choose among two or more ideas—unfamiliar ideas for many.

Issues of framing the question are addressed elsewhere. (See part 3.5.) We should note here that sometimes this is the responsibility of the electoral management body itself, and sometimes of other bodies.


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.

 


3.4.4 Courts

Courts may also be important in constitution-making. Sometimes a role for the courts is designed in the process, or even required; sometimes that role is an anticipated possibility, and sometimes courts play an unexpected role. It is more likely that a subnational constitution willbe challenged. It is not a supreme law, but must be compatible with the national constitution— and national constitutions sometimes state this specifically.

Courts with integral roles in constitution-making

Occasionally a constitution-making process cannot be completed without some involvement from the courts. The role of courts in certifying compliance with certain principles as to content, and perhaps procedural requirements, has been discussed in part 2.1.8.

In some countries, courts have a role in elections; they sometimes serve as the electoral management body, and sometimes have the function of certifying compliance with the law. That role might include certifying the result of a referendum on the constitution, as in Burundi [2005]. This sort of role for the courts is more common in the civil law tradition.

Courts with the possibility of blocking change

It is somewhat more likely that the courts will be invited to declare that a constitutional change is improper than that their positive approval will be required. And it is also more likely that amendments to a constitution will be challenged on the basis of procedural failures than that the substance cannot be validly introduced.

A constitution or peace agreement may specify certain principles on content of the new constitution without requiring a court, or any other body, to certify that the requirements have been satisfied. The only way to use such a provision may be to bring a court challenge to the document. A few such cases have gone to the German constitutional court, including one arguing that an amendment to agree to the creation of the European parliament was unconstitutional. Various constitutions say that certain parts may not be amended at all—and a challenge may be mounted to amendment on that ground. The Turkish constitutional court has ruled that an amendment to say that people’s rights to higher education could not be restricted “because of their apparel” was invalid because it infringed the unamendable secularism provision. The background was the intention to permit women wearing the “Islamic headscarf” to attend universities.

The South African interim constitution provided that one-fifth of the constitutional assembly could refer any proposed draft provision to the constitutional court for a ruling on whether it complied with the thirty-four principles, rather than waiting for the complete draft constitution. No such challenge was made.

There is no limit to amendment specified in the constitution of India, but the Supreme Court created the principle of the basic structure of the constitution, according to which certain features may not be changed. It has spelled out what these are in later cases, but in no case so far has it held an amendment ineffective. Courts in a few other countries have adopted a similar approach, including Bangladesh, and in one case Sierra Leone.

Courts and referendums

Various constitutions permit courts to block constitutional change because they can, or must, rule on the constitutionality of a referendum. This is true of the Turkish constitution, and the Albanian one. In the latter the court must review the constitutionality of issues put to referendum within sixty days—including whether the issues relate to constitutional provisions that cannot be changed.

In 1992 the Russian constitutional court declared that a referendum planned in Tatarstan (one of the Russian republics) was unconstitutional, because it essentially declared Tatarstan to be sovereign and a subject of international law. The Tatars ignored the court and held their referendum, but later renegotiated their relationship with Russia.

Special roles in implementation

In addition to the role played in most legal systems by the courts in implementing the constitution—by adjudicating on violations of rights and on the constitutionality of laws and acts of the authorities—some more specific roles have been given to the courts under constitutions. In countries where much of the law is made by judges (essentially the countries of the English common-law tradition), the courts may be directed to develop the law in a way that furthers constitutional objectives. (The South African constitution is an example.) The Kenyan constitution [2010] also provides for the possibility of the chief justice advising the president that laws have not been enacted as the implementation provisions require, and that the parliament should be dissolved and elections for a fresh parliament held; in that case the president would have no choice but to dissolve the parliament.

Problems

The risks of court challenges holding up constitution-making may be considerable where the process is controversial and political litigation is common. In Nepal, there have been court challenges to the interim constitution. In Kenya there have been many court challenges—some undoubtedly politically motivated, essentially designed to sabotage the process. This is not true of all instances, though; in one the court held that prisoners were entitled to vote in the referendum on the constitution.

Substantive challenges raise other issues. The courts may rightly view themselves as the guarantors of the constitution. But some existing constitutions are not genuine products of the people’s will, and there is a risk that the courts may stand in the way of that will being reflected in a new constitution.

In a country in serious need of constitutional overhaul, the courts may not be independent—of government, politicians, or business. Even if they are, assessing the contents, as opposed to the process, of constitution-making may require skills that the existing courts do not possess, because reliance on courts for constitutionalism has been limited.

In most countries there is the possibility on the one hand of “judicial activism” and the other of excessive “judicial restraint,” both of which may be politically motivated.

The Turkish “headscarf” decision has been roundly criticized as violating human rights, especially those of women. It takes a broad view of the implications of secularism, and is probably unconstitutional because it deals with the substance of the amendment, while the constitution says constitutional changes can be challenged only because when specified procedural irregularities have occurred. The constitutional court continues this activist approach, requiring the government to change some of the 2010 constitutional amendments—those relating to appointment to the court itself and another body that appoints senior judges.

The constitutional court of Kyrgyzstan in 2007 declared unconstitutional various amendments to the constitution hastily passed in response to popular demand. When the dictator Bakiyev was finally ousted in 2010, the interim government, under a new constitution, simply scrapped the constitutional court, in reaction against its earlier activism.

On the other hand, when the constitutional court in Albania “lost the opposition’s complaint” about a referendum and did not use its power to take a case about it on its own motion, there was suspicion that this decision was politically driven. (Some judges resigned in protest.) Otherwise, restraint may reflect division within the court—or a genuine reluctance to get involved in political matters.

Even discussion about the role of the courts is often politically charged. Allowing the courts to interfere with constitution-making is obviously controversial, even if the courts can be trusted to be neutral politically. They are impinging on the most fundamental act of people’s sovereignty: determining how they will be governed.

Special courts

Fear of court challenges has led the designers of some processes to create special courts. The South African constitutional court was designed to bring in a new style of judging; it was not created only for the purposes of the process. In Nepal the interim constitution provided for a special court merely to hear cases about elections to the constituent assembly. In Kenya [2010] a special court was created to hear cases about the process with both Kenyan and foreign judges. One reason for this was probably the expectation that the new constitution would include a provision involving the removal or at least the scrutiny of all existing judges, who had been subject to much criticism on the basis of both their competence and their independence.

Practical tips

A few points to bear in mind about designing a role for courts in constitution-making:

  • When designing a specific role, such as certification, for the courts, it is important to be sure why this is being done—what will be achieved?
  • Can the courts be trusted, and will their decisions have broad legitimacy?
  • If a special court is created, it may be necessary to amend the current constitution to legitimize taking jurisdiction away from the regular courts.
  • Strict time limits should be imposed to prevent litigation holding up the process indefinitely.
  • The courts should not be expected to sort out woolly thinking on the part of the designers of the constitution-making process about the way it should go.
  • The courts themselves should be prepared to recognize the limits of their own powers and competencies, act with restraint, and not thwart the will of the people unless that will clearly violates human rights.

A final point: a provision in a constitution that says “This constitution may not be challenged in court” contains a logical contradiction, namely that if the challenge is to the legal validity of the constitution it is a challenge also to the “no challenge” provision. A court may rationally decide that such a provision is ineffective.


3.5.1 Approving and ratifying the constitution

The constitutional referendum is but one form of the referendum; others include referendums on secession or merger with an existing state, legislation, treaties, and policies. The focus here is on the constitutional referendum on fundamental changes to an existing constitution, or the adoption of a new constitution.

Two important elements in designing a constitution-making process are the institutions and rules for making decisions on the constitution. Often the choice is dictated by political and legal traditions. An obvious distinction is between unitary and federal states; the constitution of a federation affects more than the federal government, necessitating a more complex set of institutions and rules for voting. In many cases, the deliberative body that made the draft, usually the legislature or the constituent assembly, also adopts and ratifies it. Britain and some former colonies dominated by the notion of parliamentary sovereignty leave constitutional issues to the legislature. In civil law systems, there is a preference for a referendum (though there are a number of examples of parliament making the final decision). In states under some kind of international trusteeship or custody, there is likely to be a constituent assembly or a referendum (such as in Iraq [2006]), unless there have been recent general elections to the body making the constitution (as in Cambodia and Namibia).

The purpose of this section is to examine the necessity and desirability of a referendum for the adoption of the constitution. Rules for decision-making by constitutional commissions, legislatures, and constituent assemblies have been discussed in previous sections. As a rule, a referendum ratifies a decision made by another body, usually a political body, the legislature, or the constituent assembly. (An exception is the current Somali process, in which the draftconstitution is required to be submitted directly from a constitutional commission to the people under the Somalia Transitional Charter—though this is unlikely to be feasible in the current circumstances in Somalia.) In principle it is desirable that the draft constitution should be considered and approved by a more deliberative body prior to the referendum, since the referendum does not normally provide a proper opportunity for the canvassing of views on issues in the constitution, or the accommodation of different perspectives. And the only choice in the referendum is “Yes” or “No,” not a nuanced answer.

Uses of referendum

It is possible to use the referendum to resolve a particular controversy about the design of the process or a substantive issue. It has been used, particularly in Latin America, to ask the people if they would prefer a constituent assembly to draft the constitution, or to secure the mandate for negotiations on a new constitutional order (as in the referendum of the white community in South Africa), on the mandate of the constitution-making body (as in France in 1957), or on secession and independence (as in Saint Kitts and Nevis in 1998; Timor-Leste in 1999; Bougainville, Eritrea, Montenegro, New Caledonia, South Sudan in 2006; it is also a possibility for Canada, in relation to Quebec, as result of a Canadian Supreme Court decision on the subject). A similar referendum in Kurdistan in 2005 on independence was held by the regional authorities, to secure, as expected, a big “Yes” vote to strengthen its negotiating position on autonomy with respect to the rest of Iraq. The referendum to settle a contentious issue is best exemplified by the decision of the Special Majlis (constituent assembly) in the Maldives to adjourn its proceedings to refer the major contentious issue—the system of government—for resolution by the people. Both the Uganda [1995] and Kenya [2005] processes provided for similar possibilities, but these were not taken up, either to put pressure on the constitution- making body to reach consensus, or because they were daunted by the complexity of the issues. But Uganda used the referendum five years after the constitution to settle the outstanding question of whether the country should move to a multiparty system. Decisions on the retention or abolition of monarchy have been made by referendum in several countries (such as Greece, Italy, and colonial Rwanda).

Our principal concern, however, is with the referendum for a new constitution or major amendments, for at least two reasons. First, for the purposes of constitution-making, the referendum makes people a key institution, whose approval is necessary to bring the draft into force. This role of the people flows from the sovereignty vested in them, and is a manifestation of the fundamental component of the principle of self-determination. Second, for certain constitutional changes, the direct participation of the people in the referendum is seen as a necessary condition for the validity of constitutional change. Courts in India and Kenya have held that fundamental constitutional changes cannot be made by the ordinary process of constitutional amendments, especially when undertaken by the legislature. And, a fortiori, a constitution cannot be replaced by the ordinary amendment process. These defects can be perhaps be cured if an assembly has been elected democratically for the express purpose of amending fundamental features or of bringing in a new constitution. A referendum, it follows, would put the attempt beyond doubt.

Prevalence of referendum

Professor Markku Suksi, a foremost authority on the referendum, notes that more than half of the constitution-making processes from 1998 through 2007 used the referendum to decide on new constitutional text. But at the level of states (ignoring subnational entities), new constitutions, or constitutions that seem to be the result of a more specific constitution-making process rather than a regular amendment process, have been decided by means of the referendum only in some fourteen cases (Albania [1998], Sudan [1998], Venezuela [1999], Qatar [2003], Rwanda [2003], Cyprus [2004], Burundi [2005], Iraq [2005], Kenya [2005; 2010], Democratic Republic of the Congo [2006], Serbia [2006], Kyrgyzstan [2007], and Thailand [2007]). Suksi also estimates that at least half of the world’s constitutions require a referendum for constitutional change (Suksi 2008).

Status of referendum

Apart from the subject matter, referendums can be categorized by their status. A referendum may be mandatory, required by the constitution or some other law. In these cases the results of the referendum are usually binding. A referendum may be advisory, to enable the government or parliament to gauge public opinion. In countries such as Britain in which referendums are neither mandatory nor binding, there may nonetheless exist an unwritten convention that certain important constitutional changes will be put to a referendum and that the result will be respected. The Kenyan referendum [2005] was probably advisory (if positive, the actual change to the constitution would have required parliamentary approval), but the rejection effectively killed the constitution-making process.

Some countries have elaborate rules on who may call a referendum, and when; a referendum can have a constructive or a disruptive influence on politics, and can certainly be used in a partisan way to undermine regular political institutions and processes. Sometimes it is necessary to get the permission of the courts to hold a referendum (as in Hungary). A court in Zimbabwe has held that the president can call a referendum at any time (and submit any draft constitution). Since only the legislature has any constitutional amendment power, the referendum can only be advisory. (As it happens, the Zimbabwe draft was rejected and the president made no attempt to take it or an amended version to the legislature.) For the purposes of constitutional amendment or replacement, the rules are normally relatively straightforward, and compulsory.

Rules regarding voting

How are the results of the referendum computed? On this critical matter, there is no single answer. In most systems a simple majority of those voting suffices (but in the Republic of the Congo, an absolute majority of those voting is required, and in Lithuania some provisions, touching on the character of the state, require a three-quarters majority). Some laws prescribe that a minimum percentage of registered voters must have voted, and many referendums have been lost even though the majority of those who voted said “Yes,” because of low turnout. (Ireland and Italy are among the countries that require a minimum turnout.) A few, particularly federations, require that apart from an overall majority, there must be a significant spread of support throughout the country. This rule was applied in the referendum in Kenya [2010], requiring an overall majority of those voting and 25 percent support in five out of eight provinces. (Kenyan provinces have ethnic dimensions.) In the Iraqi referendum of 2005, the requirement was both a majority of “Yes” votes nationwide and that not more than two governorates (out of eighteen) have a “No” vote by two-thirds or more of the registered voters. (This figure was chosen rather than the original and less onerous requirement of two-thirds of the actual voters, the change giving a veto to small, but compact, groups—a rule originally meant to help Kurds in their negotiations for autonomy, but which nearly enabled the Sunnis to torpedo the constitution.)

Debating referendums

With the above framework for referendums, the question is what role should there be for the referendum? We need to ask questions about such issues as: how important is it to give the final word on constitutional issues to the people; about the place of the referendum in what is often a long and complex process covering a variety of issues, some controversial; the nature and fairness of the referendum campaign and process; the fairness of the referendum; and its impact on politics and nation-building. Is the referendum about the constitution, or is it really about other issues? Are there particular circumstances when a referendum might be particularly valuable—and others when it is unnecessary, even counterproductive? In order to answer these and other pertinent questions, we look at the advantages and disadvantages that are commonly advanced about referendums.

Arguments in favor of referendum

People’s sovereignty and democracy; conformity with international norms—self- determination

The preamble of most constitutions says, “We the People give ourselves this constitution,” or something to that effect. Modern democratic theory and emerging international norms, such as self-determination, proclaim that the sovereignty of a nation is vested in the people. Since the constitution is the supreme law, a manifestation of national sovereignty, it is appropriate that the final word should rest with people.

People’s participation

Closely connected with the above point is the right of the people to participate in the constitution- making process. (See part 2.2.1.) Traditionally, the entire scope of people’s participation was the referendum, generally after the constitution was made in considerable secrecy, by a few men drawn from the upper classes. Today, as we know, people participate in many ways, but often they play a small role in decision-making—except when there is a referendum.

Check on constitution-makers

The final word is often a commentary on, or an assessment of, the results of preceding efforts. If the process has been participatory, people have a chance during the referendum to decide whether their views have been sufficiently taken into account. There are several examples of people rejecting the constitution: Albania [1998], Zimbabwe [2000], Kenya [2005]. Sometimes the rejection kills efforts at reform, but more often it leads to a better process, as in Albania and Kenya (although after a lapse of some years).

Accountability of constitution-makers

The referendum can be a mechanism of accountability. It provides an opportunity for wide- ranging debate, and if the sponsors of the draft, usually members of the government, lose, they are expected to resign. In practice this has not happened. In Kenya [2005] the president dismissed the “No” faction of the cabinet; in Zimbabwe the president intensified his oppression of the people; in Albania the government stayed on and rigged the next election. But it is likely that the regime loses some moral and political authority.

Incentives for compromise to ensure general support of all ethnic and other communities

It is possible that if the process includes a referendum, this leads to caution on part of constitution-makers involved in earlier stages of the process, making them more sensitive to views of the people and more inclined to resolve differences among themselves. It is possible that in South Africa [1996] the provision for a referendum if the constituent assembly was not able to agree (by a two-thirds vote) might have persuaded the National Party to make more concessions to the African National Congress than it might have done otherwise, and equally that the African National Congress might not have wanted the agreement with the National Party, negotiated over a long period of time, to collapse through extremist influence on the referendum. However, it does not seem that the Kenyan politicians, acting through the parliamentary select committee, were particularly concerned about the reaction of the people (even shortly before the 2010 referendum was due), but the committee of experts, realizing that the last word lay with the people, felt emboldened to restore some people-oriented provisions that had been removed by the committee.

Change after careful consideration

Insofar as the referendum provides another opportunity to reflect on the draft constitution, and involves people who might not previously have been engaged in the process, it may prevent hasty, ill-considered, or opportunistic alterations to the constitution.

People’s knowledge of constitutional matters

The referendum campaign is an intense period of concentration on political and constitutional issues, explanations of the draft constitution, and arguments about its pros and cons. This provides an incentive as well as a wonderful opportunity for the people to learn about constitutional values and institutions, and perhaps their own responsibilities as citizens.

Nation-building

Professor Suksi remarks that several recent referendums have taken place in countries in, or coming out of, conflict. For various reasons, he says, political or military leaders in these countries use referendums to secure the broadest possible legitimacy for a new constitutional arrangement and the greatest possible visibility for the constitutional solution. The referendum may, under such circumstances, be the final resort, either due to opportunism on the part of the leaders of the state to legitimize their position or because of an honest attempt to re-create public authority by a reference to the root of legitimacy, the people (Suksi 2008).

Legitimacy—people’s aspirations: Putting the matter beyond doubt

Underlying many of the above arguments is the legitimacy that is supposed to flow from people’s endorsement of the constitution. Words such as “ownership” and phrases such as “the commitment to defend the constitution” are used frequently. There is no doubt that people who have been given, and have taken, the opportunity to vote on the constitution will feel a greater stake than they would in one bestowed on them. The sponsors and supporters of the constitution often point to the enthusiasm of the people, emphasizing the significant majority for it, while its opponents feel hesitant to criticize it.

However, there is little empirical evidence that the euphoria or the hesitation lasts for long— unless the constitution delivers—or that people would take to the streets to defend the constitution. Thailand’s 1997 constitution resulting from a highly participatory process was overthrown easily enough. Even more striking was the lack of any popular resistance to the refusal of the Eritrean president to bring the 1995 constitution, which had been crafted with full public participation, into force. On the contrary, there is the risk that if the high expectations are not met soon, the support for the constitution will disappear. The next section discusses arguments against the referendum.

Arguments against referendum

A constitution is not a one-issue matter, but a complex set of values and institutions

A common worry about the referendum is that the voters will not understand the constitution or appreciate the significance of contentious issues. They may, indeed, reject the constitution on the basis of one or two issues that are peripheral to it. It is safe to say that in few cases have the vast majority of the people understood the real significance of the constitution, or the compromises that have gone into creating it.

Danger of misleading campaigns

Most referendum campaigns are dominated, if not hijacked, by politicians. Experience shows that many of them do not understand the constitution, and in many cases have not even read it. Ignoring the central objectives and themes of the constitution, they blow a minor provision out of all proportion, particularly if it appeals to the emotions, and they make the referendum a one- issue matter. They are not above deliberately misleading the people; the campaign becomes a tissue of lies—the antithesis of deliberative democracy. If the politicians are divided about the constitution, their supporters will follow them and make little effort to understand the true issues.

Voting for the wrong reasons

The party politicization of the campaign can infect the people, so that the motives for their votes have little to do with the content of the constitution (or even misunderstandings about it). There are, as it were, purely political party considerations that can delegitimize the sponsors, usually the government. In countries where parties are unstable and fluid, the considerations are ethnic. The 2005 and 2010 referendums in Kenya were marked by extreme appeals to ethnicity; their effectiveness was reflected in the voting patterns. The general feeling was that the campaigns were really about the 2007 and 2012 general elections. The referendums became politics by another name.

Dangers of manipulation and intimidation, and seeking spurious legitimacy

In many countries, especially in developing areas, the referendum campaigns and voting have many of the hallmarks of elections—use of official resources for campaigns; intimidation and the use of the militia; bribery and other forms of electoral corruption, including the stuffing of ballot boxes. In Rwanda the voters were deliberately given only two weeks for debate, attempts at independent assessment were suppressed, and the fear of another genocide was evoked by the government if the constitution were rejected. The situation was worse in Sudan, where the draft, as presented by the commission, was altered by the president and then submitted to a highly manipulated and controlled referendum. Recently a similar charade was enacted by the military authorities in Myanmar (formerly Burma). In none of these states was the process open or participatory; instead it was marked by censorship and coercion.

Deeply divisive or polarizing effect of referendum in multiethnic states

The points above suggest that, far from the referendum bringing people around a constitution and promoting national unity, it can be deeply divisive. The situation after the referendum can become worse than before. (This is illustrated by the experiences in Cyprus, Iraq, and Kenya.) These experiences also showed the majoritarian bias of the referendum.

A better form of public participation is at earlier stages of the process: People as decision-makers

If an objective is the participation of the people, it is more effective to bring the people into the process at earlier stages, when there are discussions about the reform agenda and preliminary decisions on the constitution are being made. This will engage them more deeply and make them the real decision-makers.

Referendum can be used to defeat the results of a fair and participatory process

The referendum is sometimes used to defeat the results of a fair and participatory process. In Sudan [1998], Zimbabwe [2000], and Kenya [2005], key government officials not in agreement with the drafts produced through predetermined procedures put to a referendum their own versions of the draft. Although in some cases the doctored drafts were rejected, the original drafts were not enacted. In Kenya it took several years, and another lengthy process, to install the original draft, and even then it was not promulgated in its entirety.

In multiethnic states, the better solution is to negotiate in good faith

In multiethnic states, the strongest argument against a referendum is that a laboriously and carefully negotiated settlement between different communities can come unstuck. These settlements are almost always controversial, yet they are the only basis on which agreement is possible. But disgruntled members of a community, particularly of the majority community, can use the referendum campaign to mobilize opposition with the use of racist propaganda. In a country with a troubled ethnic history, such appeals are likely to succeed. The result is deep resentment in one or more communities and the general worsening of ethnic relations. Equally likely is that some leaders would not even agree to a settlement, fearing that they would be accused by their communities of selling out during the referendum campaigns. The danger of referendum politics sharpening ethnic divisions is real. The recent Canadian experience in getting a new constitutional order shows the incompatibility of a negotiated compromise with the outcome of referendum.

Legitimacy comes from the fairness and effectiveness of the constitution

Some of the most successful constitutions have not had the benefit of a referendum, such as those of Canada, Germany, Hungary, India, Japan, Mauritius, and South Africa, while many constitutions endorsed by referendum have performed poorly or been replaced (e.g., those in Eritrea, Sudan, and Thailand). Fairness depends on the context; in the case of a multiethnic state it means that there is respect for all communities, and individual as well as community rights are protected within an overarching national identity. Effectiveness means that the status of the constitution as supreme law is honored and therefore the rule of law prevails.

Importance of the question

It is well understood that, deliberately or by carelessness, how the question is put can affect the result. When Australians were asked about the abolition of the monarchy, it is probable that a majority favored this step, but the question as framed faced them with a choice about how to replace the British monarch as head of state. This issue divided the republican vote. In Kenya [2010] the question “Do you approve of the proposed constitution?” was arguably less clear than one showing that the choice was between the existing constitution and the proposed one.

The United Kingdom electoral commission criticized a referendum on powers for the Welsh assembly for being ambiguous and using phrases (such as “devolved powers”) that people did not understand.

Comment on the debate

The arguments for and against the referendum show that while in theory it is democratic and basic to the sovereignty of the people, it poses serious practical problems. It may well be necessary in some contexts and unwise in others. It would be useful to make a careful analysis of the desired or expected objectives of the referendum before embarking on it, and to structure it accordingly. Meanwhile there are some obvious procedural improvements that should be instituted, particularly to make it fairer, more effective, and more educational.

Referendum reforms

  • One complaint about the referendum is that it gives limited choice, expressed as “Yes” or “No.” Is it possible to offer more choices? Options that may be considered are:

    • choices on a series of contentious issues (for example on abortion or on the electoral system) before the draft is finalized; or
    • choices between two drafts (for example, one based on the parliamentary cabinet system and the other on the presidential).
  • The draft constitution should be published well before the referendum date so that there is sufficient time for proper dissemination and discussion.
  • The question on which the voters have to decide should be clearly stated, and announced well in advance; testing questions ahead of time to see whether they are understood would be wise.
  • To avoid the hijacking of the campaign by politicians, an independent commission of eminent and respected citizens should be established to assist with dissemination of the draft, and the organization and funding of campaign activities, including:

    • promoting understanding of the purposes and procedures of the referendum, in cooperation with the electoral commission and other relevant bodies;
    • establishing or accrediting national “Yes” and “No” teams, drawn from academics and intellectuals, retired civil servants, professionals, and civil society, with appropriate gender, ethnic, and regional balance;
    • facilitating town hall-type meetings and media programs jointly with “Yes” and “No” teams to promote fair and open debate;
    • preparation, publication, and dissemination of materials to facilitate understanding of the draft, including for people with reading impairments, and in different languages where appropriate; and
    • engaging with monitors overseeing the campaigns and the voting.
  • A regulatory system for campaigns and for the conduct of voting, with a code binding on all political parties and other groups active in the campaign, should be established to ensure a fair campaign, including:

    • no hate speech;
    • no bribery of voters;
    • no deliberate misleading of voters and others about the draft;
    • no intimidation or use of force against those with opposing views or voters; and
    • no use of government resources other than through the referendum commission.
  • To make the referendum meaningful, the design of the constitution-making process should provide for the participation of the people in earlier stages of the process so that they become aware of the issues and the debates and are able to make an informed choice at the referendum.