2.4.1 Determining the agenda of constitutional issues

Deciding on the issues that might be included in a new or revised constitution is an important task in many constitution-making processes. Determining the agenda is a separate task from deciding what the constitution will say about any given issue on the agenda. The agenda can be created in many ways, and it usually changes in the course of a process.

The importance of the agenda

How the agenda is determined can influence both the way a process develops and the shape of the final constitution:

  • When the agenda is controlled by a group in power, and is used as part of an effort to control the contents of the constitution, the agenda itself can be divisive.
  • In some processes where the agenda has been decided consultatively, this has contributed to building consensus on the way forward for a previously divided country.
  • Decisions on the agenda can influence other aspects of the process, including:
    • decisions on subjects to be included in public awareness and public consultation efforts;
    • the subjects to be considered by committees of a constituent assembly;
    • the structure of debate in the main constitution-making bodies; and
    • the contents of the final constitution.

What are constitutional issues?

The factors that shape the agenda of issues regarded as constitutional in any particular process can be divided into external and internal ones. External factors include:

  • historical and cultural traditions (views on constitutions and institutions created by them can depend on whether a country’s colonial links were to France, Spain, Portugal, or the United Kingdom);
  • the constitution’s role in defining the state so as to ensure international recognition;
  • treaties and conventions on human rights and their protection; and
  • donor pressure for good governance and accountability, which can make independent institutions to combat corruption into constitutional issues.

Internal factors include:

  • ideas about the ideal length of a constitution—it can be no more than a short statement ofprinciples in some countries, while others accept long and detailed constitutions;
  • history of the operation of constitutions in a country; and
  • the local issues that contribute to the origins of a constitution-making process, especially in a situation of peacebuilding or a transition from authoritarian rule.

There is no legal limit to the issues that can be addressed in a constitution. As a result, the agenda that could be debated as part of a constitution-making process is potentially unlimited. The main restrictions are practical. An open-ended agenda could contribute to pressures for a long and detailed constitution, covering many general matters that might better be handled later by laws and policies. Such a constitution can be difficult to implement, and can raise unrealistic expectations about the extent of the issues that can be dealt with by a constitution.

Public awareness programs can help people better understand the nature of constitutional issues and have realistic expectations about what a constitution can do.

Deciding the agenda in advance of the constitution-making process

There are several ways in which important aspects of the agenda can be decided in advance of the constitution-making process:

  • Interim constitutions: Interim constitutions can influence the agenda in at least two main ways. First, in a postconflict or transitional situation (e.g., South Africa [1996], Nepal [ongoing process]), an interim constitution usually provides a new and more inclusive or just system of government intended to operate until a final constitution is adopted. This can provide a new set of possibilities that may heavily influence the agenda. Second, an interim constitution can define principles and features to be included in the final constitution (as in South Africa). In that way it can determine much of the agenda in advance.
  • Peace agreements: Peace agreements can often play a similar role to that of interim constitutions in setting agendas of constitutional issues in advance of the process.
  • Negotiations in advance of a process: Governments reluctantly engaging in constitution- making processes are sometimes forced into public consultation with those demanding change. In addition to addressing the design of the process, such talks often result in identifying and clarifying the issues that will need to be addressed during the process. In Kenya, years of pressure for reform resulted in several conferences in 1998 among the government, the opposition, and civil society.
  • Other documents establishing a process: The law or other legal documents establishing a process often define some of the issues. For example, the 1972 terms of reference set by the colonial legislature for Papua New Guinea’s Constitutional Planning Committee, the 1988 statute establishing the Uganda Constitutional Commission, and the 2000 statute establishing the Constitution of Kenya Review Commission all identified key constitutional issues to be considered in the processes.
  • Authoritarian regimes: Authoritarian regimes sometimes attempt to control processes by restricting the issues that can be considered. In preparing for some francophone African national conferences in the 1990s, rulers of one-party systems tried to restrict consideration of options for more democratic systems. In multiethnic Nigeria in the 1970s, the military dictator, General Gowan, tried to limit political damage from the constitution-making process by eliminating major divisive issues from the agenda. He directed a constitutional committee to consider all territorial power-sharing possibilities other than unitary or confederal arrangements.
  • Political party “victorious” after conflict: In a few postconflict constitution-making processes, a victorious political party that dominates a deliberative body such as a constituent assembly can regard itself as authorized to determine the agenda. This occurred in Timor- Leste [2002], when the Fretilin party used its numbers to set the agenda for the elected constituent assembly by centering almost all debate on a draft constitution it had prepared previously, based on the constitution of Mozambique (another former Portuguese colony).

Setting the agenda in advance in these various ways can mean that it is decided by a narrow range of interests. The majority of groups and the mass of the people can be excluded. There are situations where this may be necessary (for example, in the transition from apartheid in South Africa). In other situations, determining the agenda in advance can be an antidemocratic aspect of a process, with long-term effects. For example, the sense of exclusion resulting from party domination of the constitutional agenda in Timor-Leste probably contributed to subsequent violent conflict in that country.

Setting the agenda in the course of the process

It is more common for the agenda to emerge during the constitution-making process. This can happen in many ways.

  • Early decisions made by the main constitution-making body: When a body such as a constitutional commission or parliamentary committee is set up to consult with the people about a new constitution, often one of its first steps is to decide on the main constitutional issues. In Eritrea, for example, the constitutional commission identified what it regarded as the key issues early in the process, and then developed its material for public consultation with the people about those issues.
  • Consulting the people on the agenda—a special stage in the process: In a few constitution- making processes, there has been a consultative stage of the process aimed at deciding the issues that should be considered. In some cases this has been specially planned. For example, one of the first things the Uganda Constitutional Commission did after it was established in 1989 was to hold a series of thirty-four district seminars of two days each, which were attended by more than twelve hundred people. The twenty-nine major issues identified by the commission during this process became the central agenda of issues for the commission in all its subsequent work. In Kenya, after considerable controversy about the constitution-making process through much of the 1990s, consultative national conferences involving many stakeholders held in 1998 achieved a consensus on both procedure and the agenda (though a further three years passed before an agreed-upon process could proceed in 2001).
  • A special body: National conferences held in French-speaking African countries have in several cases defined aspects of the agenda of constitutional issues that have then been dealt with through decisions made by other bodies. (See part 3.1.3.)

The agenda often changes during the process. There can be many reasons for this. For example, public debate on the initial agenda of constitutional issues may result in new issues being identified. In other cases, what were initially treated as many separate issues might be consolidated into a smaller number of related issues. There are also cases in which public consultation and public debate on issues in the early stages of the process make it clear that there is a consensus on how to handle most issues, leaving just a few issues that remain divisive or contentious.

Focusing on the divisive issues

In most constitution-making processes, there will be a few key issues that are the ones most likely to divide people. When the process is expected to contribute to conflict resolution and to build consensus on future directions in a divided country, great care may be needed in identifying and addressing such issues. In several constitution-making processes there has been a special focus on identifying such issues, and special procedures for making decisions about them.

For example, in Uganda [1995], more than three years of public awareness programs and public debates on the many constitutional issues had, by 1992, contributed to emergence of consensus on most issues. About ten specific issues had emerged as still divisive. They were given special attention through a process intended to resolve divisive issues. (See part 2.5.2.)

2.4.2 Generating ideas on the constitutional issues

A constitutional review may cover a limited range of issues (perhaps designed, for example, to address the previous exclusion of certain sections of the community). But if a full constitutional review is established, and especially if there is extensive public participation, it is likely that many other issues may be raised. Some people will have clear ideas of what they want in the constitution; others will have a sense of dissatisfaction, but no clear idea of what might meet their needs.

Analyzing the defects in the existing constitution

At some point it is wise—indeed, essential—to identify what is wrong with the existing constitution; a constitution-maker should no more try to fix a constitution without understanding what is wrong than a doctor should try to cure a patient without diagnosing the illness. Even if the agenda of issues is short, identifying the problem is important.

Political discourse may be presented in terms of the constitutional problems, but may be on a superficial level or be based on a misunderstanding of the constitution. Political imperatives may prevent any detailed diagnosis before a constitutional review is set up, but the design of the process should build in opportunities for such diagnoses, and a procedure for ensuring that these diagnoses are taken into account when designing the new document.

Dissatisfaction with the existing constitution may flow from various sources, internal or external. In some countries there is a positive commitment to an existing constitutional document, and people may oppose changing it, though not necessarily on rational grounds.

Not all perceptions are grounded in reality (though sometimes it is the perception that matters). Examples of misdiagnosis have included indigenous Fijians’ complaint that the 1997 Fiji constitution did not protect their land rights. In Nepal people have blamed the 1990 constitution for many ills, even though many were the result of abuse of power by kings, acquiescence by political parties, corruption, and incompetence.

What may be wrong with the previous constitution?

Occasionally, the existing constitution is fundamentally unacceptable because of its origin or its content—especially if it enshrines the dominance of a now-defeated group, such as the apartheid constitution in South Africa, replaced by the interim constitution of 1993.

Less all-embracing issues may concern the concentration of power, for example, in the hands of an executive president (what has often been described in Kenya as the “imperial presidency”) or in the hands of the national government in the capital city (as in Nepal), or in the hands of a particular class or ethnic group (again as in Nepal).

A second type of complaint is that although concentration of power was not built in to the constitution, that document permitted the usurpation of power by autocrats. The Weimar constitution in Germany in the 1920s and 1930s was seen as having permitted the rise of Hitler and the Nazis.

People may complain that the constitution fails to control corruption, or offers too many opportunities for corruption. This perhaps underlay the assumptions in Nigeria in the 1960s that constitutional reform was needed—certainly corruption, and also election rigging, were identified as major issues even then. (That Nigeria remains one of the world’s most corrupt countries despite repeated constitutional surgery should act as a warning against excessive readiness to blame the constitution.)

Sometimes the complaint is that government is too weak—that what is needed is a strong government. Unfortunately there are plenty of examples of so-called strong governments that are ineffective—and all too many of governments that are too strong. This may be a good diagnosis, but untrammelled power is unlikely to be the cure.

Other complaints may surface once the issue of reform has been aired. Former colonies may feel that their constitution was essentially an imposition by the departing colonial power. Somalis complained that their constitution of 1960 was too Italian or too British in inspiration. In Nepal the 1990 constitution is often criticized because it was not prepared in a way that involved the people. President Johnson Sirleaf of Liberia has called for amendment of the constitution, suggesting that changes introduced in 1986 may have been drafted in something of a hurry in order to be able to return to civilian rule.

It is not the function of this handbook to discuss how any of these problems might be constitutionally cured, or even how they might be accurately diagnosed. The point here is simply to offer a warning about the need for carrying out this operation, and for not taking a superficial approach to diagnosis.

Some cautions

Politics is often not at all logical. Blaming the constitution for the faults of a regime or a group may be easier than pinpointing the real problems, which may be divisive. It may also be that what was wrong with the last constitution cannot be fixed by putting into the new constitution what was missing in the old one; the deficits of the old constitution may have produced a new situation in which simply doing this time what ought to have been done last time is not enough. For example, if the problem was exclusion of a certain group (whether by constitutional provision or by poor implementation), it may not be enough now simply to ensure that the group is included. The group may insist that affirmative action is now needed to bring that group forward from its position behind society as a whole.

Sources of ideas

Historically, sources of constitutional ideas have been limited. The drafters of the United States constitution had at their disposal their knowledge of governance and theory in classical Greece and Rome, their experience under the British monarchy and its institutions developed over many years, and the constitutions of the thirteen original states, as well as a flowering of political writing in the late eighteenth century. They knew what they did not want—a monarchy. But many of the institutions they created had clear origins in the British system.

Modern constitution-makers are in a different situation. Few of them read theorists. One might say that most of the active constitution-makers of the present day have a great deal of information at their fingertips, but not much knowledge. But there is a great deal of literature about how constitutions have worked, and much of the older literature would be still valuable if only people would read it.

Where do or might those in need of constitutional ideas look?

International law

Apart from its appreciation of human rights, international law has little to offer the constitution- maker. But human rights should inform the whole of the constitution. The International Covenant on Civil and Political Rights does commit parties (almost all states) to ensure that every citizen has “the right and the opportunity without distinctions [on the grounds of sex, race, etc.] . . . and without unreasonable restrictions . . . to take part in the conduct of public affairs, directly or through freely chosen representatives [and] to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot” (article 25). But this does not prescribe which system of democratic government, or which electoral system, and hardly touches most aspects of a constitution.

The wide range of treaties on the rights of various sections of the community (women, children, people with disabilities, minorities, indigenous peoples) do not necessarily commit signatory parties to constitutional provisions—states agree to take the measures needed, including laws but also including policies and practices of government. And the provisions of treaties are not necessarily suitable for adoption, as are those in a constitution or a law. But they may provide valuable ideas, and those ideas are not necessarily restricted to the context of the particular treaty. For example, the United Nations Declaration on the Rights of Indigenous Peoples makes use of the concept of “prior informed consent” (not found in other human rights treaties but found in environmental treaties). It is a notion, however, that might be more widely applicable.

Specific groups within society often become knowledgeable about “their” treaty. But they may not understand a constitution so well as they understand the treaty. Nor do international NGOs or United Nations bodies necessarily have a good understanding of constitutions. So the inspiration that may be gained from international law will need to be tempered by some constitutional knowledge.

Foreign experience

Especially since the main period of decolonization, collections of constitutions have become common. And the Internet has made most of the current constitutions of the world, and many of the past, available, especially in English. It is easy to develop a collection of provisions on almost any constitutional topic, and international trade in constitutional ideas is brisk.

A few words of caution are desirable. Legal cutting and pasting in any field is fraught with risks. And legal transplants tend to work differently in different political, cultural, and economic contexts because of differing traditions, expectations, and resources. The wealth of material has made finding provisions almost too easy. In the days when constitution-makers asked themselves “What do we want to have happen, and how do we phrase the constitution to try to make sure that it does?” the outcome may have been more successful than when there is a tendency to say “Country X has this provision; it looks as though it might solve our problem—let’s use it,” even though there may be little understanding about the problem in country X that the provision was intended to address, or about how the constitution is used in

country X, and what has been the effect of the provision in country X. Unfortunately, it is far harder to get access to information about the politics and the law of other countries than it is to get copies of their constitutions.

Radical change or what is familiar?

Sometimes constitution-makers are tempted to stick to what they know, for fear that something new may be unpredictable. There is some logic to this, but if there is a serious need to change a political culture, perhaps something significantly different will be necessary. Again, a change in one aspect of the constitution may have an impact on another aspect—and some provision that is apparently the same as it has always been will then work differently. Changing an electoral system may have a marked effect on parties, and consequently on the legislature and even on government.

On the other hand, deliberately choosing to do something radical may have unpredictable consequences. In 1979 Nigeria decided not to reintroduce a parliamentary system but to introduce the United States system. It has certainly not reproduced the United States in West Africa. What was seen as checks and balances between the head of government and the legislature led one state, when the constitution was young, into a complete deadlock as the legislature refused to approve any member of the state governor’s cabinet, and concentrated only on finding reasons to impeach him (as it did).

Our customs

Postcolonial resentment has sometimes led to a search for something indigenous by way of a constitution. Identifying what is genuinely “ours” and will also work in an essentially modern constitutional framework is no simple task. Second chambers with roles for traditional leaders and customary courts are perhaps the most common devices. These may work well, and some have been in existence for many years. Agreeing to include such features in a constitution may not be easy in a truly participatory process. Women may not be happy with male- dominated institutions, and “commoners” may resist the entrenchment of chiefly privilege.

Much of the rhetoric is self-interested. Nnamdi Azikiwe, first Nigeria’s governor-general and then its president, argued that it was contrary to African tradition and understanding to have a leader without power, a “bird in a gilded cage,” though he himself came from a community that was acephalous (except to the extent that the colonizers found it expedient to invent chiefs).

This is not to say that inspiration can never be usefully sought from tradition. But the reconciliation between constitution and tradition is rarely easy. One might argue, for example, that a parliamentary system is more akin to some traditional cultures of government because of its reduced stress on one leader and its more collective nature. But coupled with a majoritarian electoral system, it is likely to produce a confrontational, two-party system, which is far from conciliatory.