In this section we provide an overview of the issues that must be considered in designing the constitution-making process.
Processes for constitution-making have changed over time. Once it was the prerogative of the monarch to decide on and grant the constitution to the people. (We find traces of this belief in several constitutions made as late as the twentieth century—for example, in Ethiopia, Jordan, Kuwait, Nepal, and Saudi Arabia.) Many constitutions were imposed on a vanquished or colonized people (for example, in Western imperial systems—the MacArthur constitution in Japan after World War II, and to a lesser extent in postwar Germany and in colonies at independence). In the early and middle years of the twentieth century, democratic processes of constitution-making became the norm, with the principal responsibility assigned to a parliament or constituent assembly (though many constitutions were still made without much public participation). Since the last quarter of that century, the emphasis has shifted to the active and intensive participation of the people—whether as individuals, social organizations, or communities—in the process (as in processes in such diverse countries as Bolivia, Kenya, Papua New Guinea, Thailand, and Uganda). This shift has been facilitated considerably by the broadening of the concept of people’s democratic rights, including public participation, as reflected in the International Covenant on Civil and Political Rights, and particularly the right of self-determination.
Public participation, in the context of the variety of purposes that a contemporary constitution may be expected to fulfill, leads to a complex and often lengthy process. In previous ages, experts in constitutional law and political science, under the auspices of the executive (or, less frequently, the legislature), played a key role in the process. Today the range of participants in the constitution-making process has increased greatly, as have the issues that constitutions need to address. Consequently, considerable attention is paid to the design of the constitution-making process and the fundamental principles that must determine the substance of a constitution. The design of the process is often a matter of domestic negotiations (which can be protracted); sometimes it is determined or influenced by the international community (especially in cases of intense internal conflict, as in Afghanistan, Cambodia, Kenya, Kosovo, Namibia, and Zimbabwe).
The notion of designing a process may suggest a high degree of rationality, based on an understanding of the consequences of different possible arrangements. In recent years researchers have been trying to assess, for example, whether a parliament or a constituent assembly is better geared to the task of constitution-making, whether transparency or a measure of confidentiality in negotiations is more likely to produce consensus, whether deadlines should be prescribed for the conclusion of different stages of the process, and, significantly, the consequences of a high degree of popular participation. The research is not so advanced that we can make any predictions with confidence, although case studies are beginning to provide some basis for advice on the design.
Another difficulty is that even if we had enough knowledge to design the process, constitution- making is intensely political, with high stakes for many groups in society, particularly politicians. Constitution-making processes are not so much designed as negotiated. Often there is little scope to control political actors, who seek to dominate the process. There was considerable agreement on the design of the Kenyan process that began at the end of 2000, involving a key role for experts and a high degree of popular participation. However, as the implications of constitution-making for substance (and perhaps also for the growth of people’s consciousness of power) became clear, the agreement dissolved as politicians tried to exclude others from decision-making. In mid-2004, politicians took charge, and the process beginning in 2008 was substantially firmly lodged in the control of the political class.
Furthermore, the process generates its own momentum, popular participation leads to the expansion of the reform agenda, groups hitherto excluded seek representation, and spoilers appear unexpectedly—all of which may place a strain on the original scheme. There may be a selective boycott of the process by an interest group (or even, as in Iraq and Somalia, intimidation of those who engage in the process). A significant part of the process will consist of negotiations, at different levels and at various stages of the process, whose outcome cannot be predicted. The survival of the process may depend on the ability to accommodate these forces or to respond constructively to fresh demands. A sense of the dynamic of the process is a valuable asset.
In designing the process, attention is focused largely on what we may call the “official” process: of institutions created or used for deliberation and decisions, of constituencies and interest groups formally represented, of rules for decision-making, and so forth. But these do not capture the range or complexity of the activities, including lobbying and scheming, that go on outside the formal process. National or foreign civil society organizations may run a sort of parallel process, or aspects of one (such as civic education or the mobilization of marginalized communities; see part 4.1). The international community can play a critical but unscripted role. There may also be a parallel or subterranean “official” process, with all sorts of negotiations among the parties (and others) that have a significant influence on outcomes (e.g., in respect to Japan’s post-World War II constitution, or the United States’ informal, sometimes clandestine, pressures in Afghanistan and Iraq). The official process cannot, and perhaps should not, try to encompass all these groups and activities, but some of them have the potential to undermine or delegitimize the fundamental principles, objectives, and procedures of the formal process, and point to the limits of national sovereignty in safeguarding the process.