Glossary Words

Accountable (accountability)

Being under an obligation to explain and accept responsibility for one’s actions. An elected government is politically (at least electorally) accountable to the electorate; in a parliamentary system it is accountable to parliament; a public servant should be accountable to the law.


Adoption

The final decision of a body to accept something. This could be the decision of a constituent assembly to accept the completed constitution, for example, or of a lawmaking body to agree to a particular course of action. It is not necessarily a legal expression. The way in which adoption is carried out may be laid down in the law—for example, by a vote by a particular majority, or by a referendum.


Amend (amendment)

Change a law, including a constitution. How to make a change to a constitution will be laid down in the previous constitution. How to change a law will be in the constitution or the rules of parliament. It is possible that “amendment” does not include replacing the entire constitution.


Amnesty

An undertaking granted to people who have committed or may have committed some act that the authorities frown on (such as possession of weapons or engaging in insurrection) that they will not be proceeded against legally. It may be temporary, in the sense that it will apply only to those who return their weapons or give up their struggle by a deadline. The expression is usually used when groups are granted this opportunity.


Basic structure

An expression used by the Supreme Court of India. The court has decided that certain features of the Indian constitution are so fundamental that they could not be changed even by the procedure that usually allows constitutional changes. For example, the court has mentioned federalism, secularism, and republicanism as “basic structures.”


Capacity development

An expression much used by international development agencies to refer to enhancement of skills by training, mentoring, and other programs. It is often used about programs to educate public servants, politicians, and members of constituent assemblies involved in constitution-making.


Citizen

From a technical, legal point of view, a person who holds the nationality of a country (“citizenship”). But it is often used in nonlegal contexts to refer to anyone who is part of the population of a state, often with the emphasis on that person’s rights (and duties) as a member of that population—“civis Romanus sum” (I am a citizen of Rome) carries the claim of certain rights.


Civic education

An international development agency phrase referring to programs to introduce knowledge and ideas to the ordinary citizen. It does not refer to schooling or formal education. Common features of civic education are workshops, training manuals, leaflets, and various awareness-raising techniques, as well as the use of the media, including radio, television, and social media. For the purposes of this handbook we define it as any activity that helps prepare the public to participate, whether before a constitution is prepared or after it is adopted.


Civil society

The people, in a form that is organized to some extent in formal structures such as political parties, religious groups, organizations, societies, or movements. The key feature of civil society is that it is not controlled by a government.


Code of conduct

A formal set of guidelines for behavior. May be drawn up by an official body, or by any other body. Even if drawn up by an official body it will probably not be legally enforceable, and it will not include specific penalties for breach. But a law could require codes of conduct (for example, for members of a constituent assembly), and in an official context the code could be relevant to deciding whether a person has broken the law or has failed to act properly. Codes of conduct have become common—for legislators and ministers, for candidates and parties at elections, and even in civil society contexts. (See appendix C for examples of codes of conduct.)


Commission

Does not have a specific legal meaning. It generally refers to a body given the responsibility to inquire into certain matters, or to make decisions or recommendations. A commission will not usually be a large body. It is possible to have a constitutional commission to make detailed proposals for constitutional change, though such a commission would not be able to adopt the constitution for a country. In many countries there are commissions for various purposes (human rights investigations and election management are common examples), which are somewhat— even very—independent from the government. The constitution will often guarantee this.


Consensus

General agreement on an issue—but it need not mean unanimity. However, a mere 51 percent majority would not be a consensus. Though it is a phrase often used in constitution-making, it often causes difficulties. It is rather vague for legal purposes. And there is always a risk that the consensus can be that of the majority, excluding minorities. In South Africa a practice developed in the constitution-making process of accepting “sufficient consensus,” which meant the agreement of the two main political parties. Many would not view that as really “sufficient.”


Consociational

A principle under which individuals are considered part of a state as members of communities rather than as individuals. It could be manifested through community (ethnic or religious) seats in a legislature, power sharing in government, or the right of communities to veto certain governmental decisions. No state is fully consociational; Belgium is a modern example of a state with consociational features. The term is associated with the work of the political scientist Arend Lijphard.


Constituent assembly

A body designed to represent the people, and to adopt a constitution. The form of such assemblies varies widely, and some of them make the final decision about the adoption of the constitution, while in other cases the final act of adoption is performed by a separate parliament or by the people through a referendum.


Constituent power

The power to make a constitution. The Nigerian constitutional lawyer B. O. Nwabueze said, “It is a power to constitute a frame of Government for a Community, and a Constitution is the means by which this is done. It is a primordial power, the ultimate mark of a people’s sovereignty” (Nwabueze 1974: 392).


Constitution

A set of rules that govern the basic structure and operation of institutions of governance in a state. In a modern constitution the rules will also provide for the basic rights of people within the state, and may include some guiding principles for national laws and policies more generally. In most countries the word refers to a particular enactment that contains those rules. But some countries have no enactment that is called the constitution, a few have several that together make up the constitution, and in a few the constitution comprises a mixture of conventions and laws.


Constitutional commission

A commission with the task of preparing a proposed constitution, probably after a process of consulting the people and experts, and studying the problems of the existing constitution, if any, the provisions used in other countries, and various other sources of constitutional ideas.


Constitutional reform

“Reform” suggests change, but not necessarily legal change. In the context of constitutions it would usually mean amendment or replacement of the constitution, but might well mean wider changes in society and governance. Not a precise term.


Constitutional review

A process of considering whether an existing constitution ought to be amended. The process might end in a new constitution, but this is not necessarily part of the initial plan.


Constitutionalism

An acceptance, prevailing especially among the ruling classes, of the notion that public life should be governed by the constitution. It does not mean that the constitution is universally respected, but it should be contrasted with a situation in which the constitution is used and respected only if it suits those in power.


Coup

The act of taking over the government of a country by illegal means, most often by the military, but not necessarily by force. May sometimes lead to an effective government that is recognized, even by courts, as “constitutional.”


Deliberation

The fair consideration of all positions, guided by the values of democracy and the general welfare, rather than by populism and crude bargaining on the part of narrow interest groups.


Donors

The countries (especially their aid arms) and international bodies that give financial assistance to developing countries. “Donors” is a common expression, although recipient countries are aware that “donations” are tools of policy of the donating countries.


Draft (constitution)

A constitution or other document not in final form—often offered for comment, as a draft constitution might be published in order to encourage public reaction.


Drafting

The expert task of putting constitutional ideas into precise legal language that those who will employ the constitution, including the courts, are able to interpret. The word is often used to refer to a logically prior phase when ideas are put into a structured document, often called the draft constitution. Unfortunately, in many processes, constitutional commissions and constituent assemblies take it upon themselves to produce the final words of the document, even though they do not fully understand the words’ legal meanings and implications.


Electoral management body

Not the electoral system, which is mainly the way in which the votes of citizens are translated into the membership of legislative bodies, the way in which elections are conducted. Because of the risk of interference, especially from the government, it is common to have a body such as an independent election commission run an election. Sometimes this body is part of the judiciary. It would be in charge of accepting nominations, recruiting staff, arranging the voting on polling day, counting and preserving the ballots, and the like.


Empowerment

The process of creating an awareness of rights and generally educating the public about governance, with the result that the people are encouraged and emboldened to exercise their rights and powers—such as by voting or expressing their opinions. Some agencies are apparently beginning to prefer “engagement”—a logically different concept, but perhaps the outcome of “empowerment.”


Endorse

Agree with—usually used of authoritative agreement.


Entrench (entrenchment)

Include a rule in the constitution in such as way that it is particularly hard to change. In some constitutions there are a few rules that cannot be changed at all.


Flexible constitution

A constitution that can be changed without great difficulty, though few constitutions will be able to be changed by the process used to change ordinary laws. A flexible constitution is usually one that does not contain great detail, or one in which the meanings of the words themselves are rather broad, leaving room for a variety of interpretations.


Grand reform

Would be used of a major reform of the constitutional system, rather than a process of minor or incremental change.


Hansard

The printed verbatim record of parliamentary debates in many common-law countries. Hansard was a nineteenth-century printer of such records in England. Sometimes, by extension, used of other verbatim records.


Human rights

The rights every person has by virtue of being human—whether one feels these rights are divinely given or not. Recognized by many international treaties and other documents (including the Universal Declaration of Human Rights, the “International Bill of Rights”—comprising the International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights—and various “sectoral” conventions on rights of the child, discrimination, rights of women, and so on) as well as in most countries’ constitutions, though to varying extents.


Implementation

The process of putting the rules of the constitution into practice. It covers passing new laws, setting up institutions, or changing existing laws and institutions as the constitution requires. The insistence by citizens on using the constitution, especially by going to court or otherwise seeking to enforce constitutional duties, is also a form of implementation of the constitution.


Incremental [constitutional] change

Changing a constitution over a period of time by making successive changes to parts of it. May lead to a radically different document over time. But it is not a process that can be controlled or planned.


Interim constitution

A constitution designed to be temporary. It usually prescribes the method for preparing a permanent constitution.


International law

International treaties and other agreements, and international practices that have achieved sufficient recognition to be regarded as binding. In the context of constitution-making the most important form of international law is likely to be human rights law. This includes the Universal Declaration of Human Rights, and various conventions and treaties, such as the International Covenant on Civil and Political Rights. When a country is a party to a particular treaty, it will be important to decide how the constitution is going to reflect this in the rights it recognizes and the duties it imposes. The International Covenant on Civil and Political Rights (article 25) also says that people have a right to be involved in decisions that affect them, which the United Nations Human Rights Committee has interpreted to include constitution-making.


Legal continuity

When applied to a constitution, this term refers to the document having been authorized by some other law. The Bangladesh constitution was not based on legal continuity because it was traced to a proclamation of independence that was illegal under Pakistani law (and Bangladesh was part of Pakistan at the time). The South African interim constitution was the product of legal continuity because it was enacted following the procedures of the existing (white supremacist) constitution. This technical legal point has no necessary relationship to how much the content of the document departs from the past.


Legitimacy

A concept of political science that refers to the acceptance by people generally of a system of government and rules. It is different from the concept of “legality,” which refers to the validity of the rules in a legal sense. Legitimacy is more a question of (usually public) attitudes.


Majority

Literally, “most.” Many decisions have to be made by a majority of a particular body. But sometimes “most” may simply mean “more.” If there are three or more options or candidates to be decided upon, and the one receiving the largest number of votes is accepted, even if not more than half the people have voted, we call that a “simple majority.” Some decisions have to be made by at least half of the people voting. This is sometimes called an “absolute majority.” It should be made clear whether this is half of all those casting ballots, or half of the entire group entitled to vote. Sometimes constitutional changes are required to be adopted by a much larger majority—two-thirds or even three-quarters of the entire body.


Media

Newspapers and books, broadcasting, and now the Internet.


National ownership

The notion that if people are involved in a process, they are more likely to feel that the outcome is “theirs,” and be committed to supporting it over time. This may be used of a project such as a well, a school or—in the current context—a constitution.


Necessity, doctrine of

Legal rule applied in exceptional circumstances to justify or endorse acts that would otherwise be against the law. When used by a court to recognize a government, the court will usually stress the need to return to constitutional rule as soon as possible. This doctrine was invoked in Nigeria in 2010 when President Yar’Adua neither resigned nor asked his vice president to act, but was himself not acting (and ultimately died), to justify the assumption of power as acting president by the vice president (not endorsed by any court decision).


Nongovernmental organizations (NGOs)

Organizations not comprising persons in government, and not set up by law. They may have to be set up by a procedure required by law and even perhaps registered. They can also be thought of as organized civil society. Political parties are not commonly referred to as NGOs. In reality many NGOs are not free of governmental involvement. Organizations that are NGOs in one country, but operate on an international scale (often using funds from donors), are sometimes called international NGOs.


Plebiscite

A process in which the people (plebs, the Latin for “people,” is the root) are asked to vote on an issue, rather than being asked to vote to select representatives. Sometimes used of a process in which the vote is not binding. However, the usage is not fixed, and there is no rigid distinction between a plebiscite and a referendum.


Principles

In constitution-making, sometimes used to refer to guidance on certain things that should appear in the final constitution, or possibly on the process. These might be called constitutional or guiding or foundational principles. They may be laid down by a peace process or an interim constitution, or in other ways.


Promulgation

The formal act of bringing a document into legal effect, or the act of making public a law or document that is already complete.


Public consultation

A process of seeking people’s views with the idea of taking account of them in decision-making. It does not require accepting all the views. In the context of constitution-making it usually refers to the process of consulting members of the public about how the process should be structured, their expectations of the constitution, their ideas about the system that should be adopted, and their views on a draft constitution once one is prepared. (See part 2.2.)


Public participation

The active involvement of the public in decision-making about issues in the public sphere. It would often be more than just voting for representatives who will make decisions. In the context of constitution-making it is likely to involve a process of informing the public about the process, conducting civic education and consulting the public on their views related to key constitutional decisions (decisions could be about the structure of the process as well as the content of the constitution). (See part 2.2.)


Ratify (ratification)

To approve an act done by someone else—and thus to have some legal effect, or to bind oneself. A country for which a representative has signed a treaty will often not be bound until it is ratified by some body—perhaps the legislature. In constitution-making a referendum might be required so that the people can ratify the constitution.


Referendum

A process in which the people are asked to vote on an issue, rather than being asked to vote to select representatives. Sometimes used of a process in which the vote is binding—as opposed to a plebiscite. However, the usage of neither word is fixed.


Repeal

The act of “unmaking” a law—usually by the same legal process used to enact it.


Revolutionary legality

Used in Eastern European socialist states to describe the basis of law. Also used sometimes in relation to the process of deciding that a regime that was originally illegal has become legal by virtue of acceptance; sometimes also called the “successful coup” doctrine. See also “Necessity, doctrine of.”


Rigid constitution

A constitution that is hard to change. Also refers to one that has many detailed provisions, leaving little room for different interpretations. The opposite of a flexible constitution—though in reality all constitutions are on a continuum.


Road map

A document that sets out a sequence of events, perhaps with timetable, that is to be used to move toward an objective. It might prescribe not just the institutions to be involved in constitution-making, but the order in which decisions are to be made and public consultation is to be carried out, and so on.


Roundtable

A meeting of a wide range of bodies within society, not within the framework of the organs of government, and probably without a formal structure or decision-making process, intended to decide on a course of action. That might be the broad framework of a constitution or of a road map toward a constitution. Participants might be political parties but might also include civil society.


Social contract

A construct of political theory that refers to the idea that human beings come together in society and agree to be ruled. The original social-contract theorists thought of this as an agreement between the people on the one hand and the rules (probably represented by a king) on the other. Modern theorists might think in terms of an agreement among the people. Some have suggested that the constitution is a form of social contract.


Sovereign (sovereignty)

Characteristic of an independent state within the community of states, meaning that it is not subject to any other state. Having full powers. Also used in the phrase “sovereignty of the people” to indicate that the sovereignty is not that of a monarch or government.


Spoiler

Used in literature on constitution-making to refer to one who obstructs the constitution- making process.


Submission

A putting forward of ideas and suggestions—either orally or in writing.


Transition

Movement from one situation to another; often used to describe political or constitutional change from autocracy to democracy and the like.


Transitional

A term often used of a constitution or an institution intended to last for a limited time until something permanent is established. It could refer to, among other things, a legislature, a court, or a government.


Transitional justice

A term characteristic of various institutions designed to bring justice and reconciliation to a country that has gone through conflict; may include a “truth and justice commission,” special courts or tribunals, and commemorations.


Truth and justice commission

A commission set up to hear the stories of victims, usually of a previous regime, perhaps recommend or grant compensation, and perhaps recommend or grant pardons. The names of such commissions may vary from country to country.


Workability

An assessment of the “workability” of a constitution includes whether the design will match the circumstances of the country, as well as questions of the capacity of the country to operate it, its likely cost, whether it will generate a great deal of litigation, and so on. Less important perhaps are other concerns: readability, length, and durability.