The broad principles of “participatory” constitution-making can be summarized as public participation, inclusiveness (including gender equity) and representation, transparency, and national ownership.
Political elites inevitably play a major role in making decisions about how to structure a new state. However, there is now an established trend to build into the process broad participatory mechanisms in order to avoid a constitution that simply divides the spoils among competing factions, and to improve the chances of the new constitution enjoying a high degree of popular legitimacy. The forms of public participation now go beyond voting for constitutional representatives or in a referendum. Instead, they include civic education and media campaigns, public consultation (both on how the process should be undertaken and on the substance of the constitution), national dialogue, and other creative means. We discuss throughout this handbook opportunities to make the process more genuinely participatory, along with the potential risks associated with public participation and how to minimize these risks. (See, in particular, part 2.2.)
Inclusiveness (including gender equity) and representation
An inclusive process will attempt to draw in all key stakeholders to the constitutional negotiations (see box 9). Special efforts will be made to reach out to marginalized segments of society, such as the disabled, women, youth, indigenous populations, and the poorest of the poor. This handbook discusses how to design a process that is inclusive at all stages. Some recent constitutional processes have deliberately undertaken special measures to ensure that women are represented by at least 25 percent in constitution-making bodies, and that they participate more fully during each stage of the process (e.g., Afghanistan ). We provide examples throughout the handbook of how to ensure women’s full participation in the process, including in the institutions’ rules of procedure, during civic education and public consultation, as staff members or leaders of an administrative management body, and in playing a role in civil society activities such as lobbying and monitoring the constitution-makers. These gender equity tips are provided in each relevant section rather than having a specific section on gender issues.
In contrast with the elite-dominated processes that occurred in closed conference rooms that were the rule until the 1970s, a transparent process enables the public, the media and civil society to participate by keeping them informed about how the process will be conducted, the modes of appointment and election of their representatives, the adoption process, their role in the process, and providing feedback about the results of public consultations. Transparency also involves providing for media access at appropriate times. This handbook discusses throughout when transparency is a benefit and when a more open process can be a drawback.
Solutions to conflict and division must come from within a country if a durable peace is to have a chance. There is a need, in contexts where educated or experienced professionals or political actors have fled the country, to provide the space, time, and resources to develop the capacity of inexperienced national actors to manage and implement the process effectively. We discuss in several sections what national actors can do to manage or relate to international actors, in particular the international community, to reduce the influence of competing or foreign agendas that do not support the national objectives for the process. The handbook is also focused throughout on promoting a broader national ownership of the public through participatory mechanisms such as civic education and public consultation, etc.