4.1.5 Submissions to the constitution-making body

The modern trend in constitution-making is toward popular participation, and increasingly the official process provides opportunities for public participation and will publicize how the people can participate. Civil society and the media can play significant roles in helping people better understand how to make submissions and share their views. Further, civil society groups can be expected to have strong interests in making their own submissions, particularly in relation to the constitutional issues of relevance to their fields of work and expertise. To be able to play such roles, both media and civil society will generally have to familiarize themselves with the timetables and procedures of the process so that opportunities to contribute are not missed. However:

  • delays in other parts of a process may reduce time allocated to public consultation, so that it can be critically important to pay constant attention to the changing timetables of consultative activities;
  • designers of official processes may have their own, rather limited, ideas of when public inputPart 4: Guide to key external actors in the process: Civil society, the media, and the international community is needed, and in what form, while civil society organizations may wish to have input at different times or in different ways; and
  • not all constitution-making processes are intended to be participatory, and even in such cases civil society may be able to encourage the submission of views from the people and may make its own submissions.

Further, a constitution-making body may have its own guidelines on how submissions of views should be made (e.g., the Uganda Constitutional Commission published a pamphlet on the subject). In such instances it will be important to study and understand the guidelines so that advice given to the public about making submissions is correct. However, at times the guidelines may not allow for the issues that civil society and the public are interested in presenting to the constitution-making body. Civil society and the media can then urge a broader constitution- making agenda.

An organization or an individual with a well-thought-out idea, or many ideas, about the content of the new constitution or how the process should be carried out should plan to present these views to the constitution-making body in a way that will have a powerful effect. As discussed in part 2.2.3, in a participatory process, many people or groups may make submissions in many forms. These can range from short statements at public meetings to SMS or e-mail, Twitter, and Facebook messages, handwritten letters, long written submissions, or even full draft constitutions. Brief submissions should not be discounted, as a particularly forceful statement may have a lasting impact on a reader.

Here are a few suggestions about making submissions, some drawn from the advice of people experienced in doing so, some based on common sense:

  • Find out whether the existing constitution contains anything relevant on the issue of concern. If so, should the new constitution contain the same provisions, or are you suggesting changes? If you are suggesting changes, what is the problem involved, what is your alternative, and how would it fix the problem? If your suggestion is to retain the current provision, what is the issue of concern, and why is the existing provision the best approach?
  • Do not simply make assertions such as “We favor a presidential system.” Instead, always give reasons for what you propose.
  • Remember that research and accurate facts and figures are important. Make sure your information comes from sources that can stand up to inquiry.
  • Be as brief and as clear as possible.
  • Note that ideally a submission should stand out so that recipients want to read it—but usually there is no need for it to be “glossy” and expensive-looking.
  • If the submission is long, begin with a summary bringing out the main points clearly.
  • Recognize that sometimes a petition, or a postcard campaign in which many people are asked to sign and send in preprinted cards making a few short points, can be useful. But it is easy for critics to dismiss such campaigns, saying that most people who signed did not understand what they were doing.

For an oral presentation (for example, at a public meeting with constitution-makers) the following practical tips may be useful:

  • If the submission is on behalf of a group, choose a representative who is knowledgeable and persuasive.
  • Be creative in the form of the presentation. For example, in making a case for the rights of children, including some children with particular relevant needs, or even a short film emphasizing the plight of children, may have a powerful impact, and make your submission stand out.
  • Time limits set by the constitution-makers should be respected.
  • Remember that presenters should be respectful of the constitution-makers—but firm in the approach they take.

For any submission, it is wise to focus on the issues of substance and avoid “flowery” or exaggerated language. Defamatory, tribalistic, or other inflammatory statements should be avoided. A little personal detail may sometimes be helpful, showing how specific issues have affected citizens.

When using the media, it is worth noting that a constitution-making body may take more notice if the media can be persuaded to give some attention to a particular submission and the issues it raises. Suggestions in relation to use of the media include:

  • Take steps to ensure that the media know about a submission that is to be presented, and that they understand its importance.
  • Create effective press releases.
  • Remember that the press might welcome something to take a picture of—something that makes a good picture: a photogenic person, a march, a dance, a colorful event.

Box 44. Use of South Africa’s petitions [1996]

It is often stated that the South African constitutional assembly received two million submissions. But in fact signatures on cards and petitions were counted as submissions. These forms of submission were not taken so seriously as were more formal ones that argued the case of the author, of which there were only about 13,000.

Unsolicited submissions

If the process does not make provision for public submissions or if deadlines for making submissions have been missed, it may still be possible to create opportunities to put views forward. Appropriate tactics will vary according to whether the intention is to submit views to a commission, a constituent assembly, or the national legislature. For example, to get views before a constituent assembly, a civil society organization might:

  • invite one or several assembly members to a meeting;
  • lobby members of the assembly, especially while the issue is being discussed in a committee or in the plenary;
  • use the media in efforts to influence public opinion and the opinions of assembly members;
  • hold dignified public meetings on relevant issues;
  • put together a small, easy-to-read publication that can go to every assembly member; or
  • introduce ideas into a committee directly or by lobbying committee members (because committees are smaller and are where much of the real work of making the constitution will be done).

In a constituent assembly with a strong party presence, or even dominance, it may be difficult to get views listened to other than through a party. That would suggest the need to focus on party members who are able to influence other members of their parties.

Sensitive issues

In almost all societies there will be some particularly sensitive issues about which provisions are potentially to be included in the constitution, and in relation to which it may be difficult to generate public support—positions perhaps favored by civil society actors informed by an understanding of the need for protection of human rights, or “liberal” perspectives of a similar kind. Such issues could include gay rights, the rights of sex workers or prisoners, women’s rights to abortion, euthanasia, abolition of the death penalty, and rights for widows. Experience has shown that there can even be a risk that if too much attention is drawn to some issues, unsympathetic groups may be prompted to try to get the constitution drafted in a manner that excludes any “liberal” perspective on such issues. But consider the following:

  • On an issue such as the abolition of the death penalty, rather than confronting the issue, submissions from civil society could support introduction of a broader provision such as strong support for a right to life, opening the possibility that at a later point, the courts or the government can use that right to abolish the death penalty (as occurred in South Africa—see box 45 below).
  • Civil society submissions could draw upon international experience—especially the example of a country with similar social conditions that has adopted an idea like the one being promoted.
  • In the area of human rights, or perhaps the environment, submissions could rely upon the argument that the country is already supposed to do something because it has signed international agreements. (But remember that it is quite common for resistance to be shown to international agreements as “foreign interference.”)

Timing

Once there is a full draft constitution, it may be hard to introduce fundamental changes; big ideas on major issues may have the best chance of acceptance if introduced at an early stage. Ideas of less central importance may be easier to introduce as changes to a draft, to refine it and make it more effective.

Staying interested

Suggestions accepted at some stage may not appear in the final constitution—they may meet later resistance or incomprehension, or may even be omitted by error. It is important for civil society actors with an interest in particular issues to monitor the process, reading drafts to see whether ideas have been accepted and pointing out omissions.