An understanding of the role of a constitution is critical to designing the process for making it. And the process is not only for making the constitution but for generating or creating the environment, promoting the knowledge, and facilitating the public participation that are conducive to a good constitution and to the prospects for implementing it. We therefore begin with a short discussion of the importance and role of the constitution.
The first decision to be made is about which body will have the primary responsibility for approving or rejecting the draft constitution. Here the choice, as noted above, is frequently between the legislature and the constituent assembly. The second decision is whether there should be more than one stage of approval. The most common instance of more than one stage is when there is a referendum. Sometimes the draft can go straight from the drafter to the people for a referendum. This seems to have happened with the constitution of the European Union, and is stipulated in the Federal Transitional Charter of Somalia of 2004, but there are few other examples. The Kenyan process  erred on the side of too many approvals—a national constitutional conference (broadly similar to a constituent assembly), a national assembly, and— a requirement imposed by the courts when the process was nearly finished—a referendum. It is important that there should be ample opportunity to consider the suitability of the draft, but too many approvals place hurdles in the way of enactment, give further opportunities to the spoilers to regroup, and perhaps need to be avoided. (See part 2.7.)
The other major decision regarding the design of the process concerns the rules for decision- making; different institutions have different levels where a decision to carry on with the process or to approve the draft will be made. Here the primary question is the majority required. A simple majority may not be seen to give enough protection to minorities. The constitution- making process is an opportunity to build consensus on fundamental national values. Sometimes this is taken to mean that there must be unanimity (as in Kenya, Nepal, South Africa, Uganda and Vanuatu). If this fails, there may be a formal (Nepal) or informal (Kenya) process to settle differences. But they both, like Uganda, provided for a two-thirds majority if no consensus was achieved. A large majority is preferable if the country is deeply divided, especially on regional or ethnic lines. But it increases the risk that no constitution may be adopted. So does a rule that states that a minimum degree of support in a minimum number of communities or regions should be required in addition to an overall national vote (as in Iraq, where the draft was nearly defeated by negative votes in three governorates). (See part 2.5.1.)
Many states provide for a referendum, but, contrary to what a Kenyan court thought, it is not indispensable under constitutional principles. Its use is less than universal and it is controversial. If the earlier stages of the process are participatory, with compromises to reach a consensus, then it may be unwise to put what has been achieved at risk. Referendums can be divisive, increasing tensions in society (as the experiences of Iraq  and Kenya [2005; 2010] show). However, the Maldives (in 2008) made an interesting use of the referendum to determine only one issue, which had become extremely contentious—whether the executive should be parliamentary or presidential. Once that was resolved, the constituent assembly (the Special Majlis) proceeded quickly to adopt a new constitution. If the issue to be resolved touches on self-determination, a referendum can be a useful device to discover the people’s preference (as has been proposed regarding secession in Canada, and carried out in Bougainville, New Caledonia, and South Sudan).
There has been much concern with constitutions and constitution-making in the last three to four decades. The world order has changed a great deal in this time; the final mopping-up of colonialism, with the emergence of new states, the end of military regimes, the collapse of communism, and efforts to end civil conflicts, particularly in multiethnic states, have all contributed to the production of constitutions. The variety of contexts in which constitutions have been made shows that the primary purposes a constitution serves vary considerably: nation- building as a new state emerges; the consolidation of democracy as the military retires to the barracks or authoritarian presidents are deposed; liberalism and the creation of private markets with the end of communism; peace and cooperation among communities to end internal conflicts. These purposes determine the orientation of the constitution, and often also the process by which it is made.
Constitutions are dependent on national contexts in another significant way. The conception and understanding of, and therefore the respect for, constitutions vary, depending in considerable part on national history and the reliance on and respect for law as a key mode of organizing society and state. So the terms “constitution” and “constitutionalism” do not always have the same meaning or impact in all countries.
Constitutions that are the product of long negotiations in which different interests are carefully balanced, or that seek to make fundamental changes in the organization of the state and society, or that are agreed to under external pressure, are not easy to implement. Many provisions, particularly those dealing with values and ethical standards, or institutions aimed at accountability and the rule of law, may remain weak. Therefore special attention needs to be paid to the mechanism for a constitution’s implementation and enforcement. This is seldom done as part of the constitution-making process. In some recent processes this matter has been addressed by a variety of measures: a schedule (an annex) in the constitution dealing with transitional matters; another containing a list of legislative and other steps necessary for implementation and deadlines for action; an independent commission with responsibility for supervision and implementation; a constitutional provision that principles should be implemented by executive authorities so far as possible, even if no legislation has been passed; a provision that courts should be able to give orders within the same framework; the empowering of civil society to participate in the implementation and mobilization of the constitution; and making the implementation of certain principles a condition, for example, for the assumption of specified powers by the executive or the legislature.
A new constitution can take root easily if the country has a commitment to and the infrastructure necessary for the rule of law. But other social and political orders of authority may compete with it where charismatic politics or the tradition of the “strongman” prevails, where high authority is ascribed to religious or customary leaders, or where society is closely regulated by social norms, institutions, and hierarchies. In a society that is largely homogenous, with common values and aspirations, and with members who have been part of the same state for a long period, constitutional reform is relatively easy, but not particularly critical (for example, consider the reform of the governmental system in Finland in 2000). Such a country may indeed be able to dispense with, at least, a formal constitution (as is, or at least until recently was, the case in Great Britain and New Zealand). A state that has several communities with different languages, religions, or modes of social organization is less able to rely on common values and social institutions for the regulation of society. Instead it may have to depend in part on the values, aspirations, rules, institutions, and procedures incorporated in the constitution—and this is not easy, as old loyalties and habits persist but also take on new political significance.
Sometimes the provisions of the constitution to protect the rights of the people, promote constitutional values of equality and social justice, and ensure the integrity and the accountability of the government fail. One reason is that the state in many developing, and indeed some developed, countries is the principal means by which ministers, bureaucrats, and others with special access to the state accumulate illegal wealth, give state jobs and contracts to relatives and friends, and protect themselves from due process of the law (by impunity, bribery, or intimidating the judiciary). Even when new institutions to promote the accountability of state organs or fight corruption or protect citizens’ rights are established (as they are in many new constitutions), they are corrupted and often rendered ineffective by ministers, bureaucrats, and tycoons.
A particular difficulty in implementation arises with regard to constitutions that are made in conflict or postconflict situations. They are made under considerable pressure or even coercion, often from powerful Western states, and assume demilitarization, the establishment of consensual institutions and orderly state processes, and an end to violence. But rarely do the antagonisms and the armed forces that led to conflict end, nor does the cease-fire last long. A particular focus of this handbook is constitution-making in conflict situations.
By “sequencing,” we mean how the different stages are organized and ordered, whether there are clear demarcations among them, and whether the commencement and the conclusion of the process depend on collateral processes and decisions. There are two distinct issues here. The first arises when constitution-making is part of a wider process of ending armed conflict and establishing a peaceful order. The question then is: at what stage does constitution-making become feasible and central? There may be important preliminary questions to be resolved first: a cease-fire, the control of weapons, other confidence-building measures, tentative understandings about truth and reconciliation processes, negotiations of impunity, and some interim arrangements (such as allowing rebels or excluded groups a role in day-to-day government), before the parties negotiate the principles of the new constitutional order.
These considerations were critical in South Africa, and on the whole the sequencing that led to the adoption of the final constitution facilitated the constitution-making process. On the other hand, Nepal’s recent experience (beginning in 2006) shows that unless these matters are first dealt with satisfactorily, the parties can get bogged down in the constitution-making process. However, some broad agreement on how the country is to be governed in the future (i.e., the principles of the new constitution) may be necessary to deal with the preliminary issues mentioned above. Sometimes a specific national situation governs the question of timing. It is said that the Philippines’ Cory Aquino wanted a constitution urgently after her election and the overthrow of Marcos because she was afraid of a coup by the military and felt that a new constitution would minimize its power and deter it. There was no such urgency in Nepal; the king had been forced to give up his powers, and a preliminary agreement between the Maoists (just ending their insurgency) and the “democratic” parties had established a satisfactory basis that allowed them to set a more leisurely pace for a new constitution.
In a situation where conflict has not entirely ended, one relevant factor in the decision to proceed with constitution-making is the consideration of the stage at which maximum public participation might be possible, which may be well beyond the time of the cease-fire. It can sometimes happen that such participation broadens as the process moves on, as matters settle and people begin to feel more secure. We suggest below that one option, when significant public participation is not feasible, is to focus on interim arrangements, promoting as much public participation as possible but keeping the option of a more participatory process open for later. (See parts 2.1.9 and 2.2.2.)
Other tensions in conflict or postconflict constitution-making are the balance between peacebuilding, which may be favored by the international community, and local public pressures for a new constitution; incentives for the cessation of fighting versus trials for war and humanitarian crimes (raising difficult questions of impunity, compounded by the prohibition of amnesty under emerging international norms); and the choice between holding elections before the process and the imperative of confidence-building among the warring factions and between them and the public.
The second context in which the issue of sequencing arises is when the conditions for constitution-making exist, and the question is how best to organize the necessary tasks. The sequence depends on various factors, including the extent of public participation and the distribution of responsibilities for the different tasks. The sequence also depends on the purposes of the process, which can include national reconciliation, nation-building, and democratization. The first step is to agree on the need for constitutional reform, the principles underlying it, and the modalities of the process. The next is to engage the public in the process by providing civic education and information about the process and soliciting the views of the people on constitutional reform. There are different ways in which the people can be engaged; the choice may be to seek public opinion on the basis of a questionnaire or through an open-
ended process, or indeed on the basis of a draft constitution—or a combination of these. A central task is the drafting of the constitution, and here a critical issue is to determine who should have the principal responsibility for it. The debate on the draft constitution and its enactment are the next stages, which are often considered the final ones. But the adoption of a new constitution is only the beginning of the task of establishing a new political and social order, and it is extremely important to consider strategies for implementation as part of constitution-making.
A special issue in sequencing is whether constitution-making should follow or precede elections. Scheduling the process before regular legislative elections may be helpful, as delegates are less likely to know what their positions would be in subsequent electoral contests or in government. They are likely to take a longer view and attend to a range of interests broader than their narrow personal interests.
Another general sequencing issue is whether the people should be consulted before or after the preparation of a draft. Subsequent consultation gives the public a chance to comment on concrete proposals, but prior consultation provides greater scope for the expression of public views and the enhancement of people’s initiatives. It is possible to have public consultation both before and after the draft is prepared, which is becoming the common practice (as in Kenya and Bolivia).
Throughout this constitution-making process many individuals, parties, communities, and interest groups play a part, give of their time and engage their passion, lobby for different values, institutions, and procedures, teach or learn about constitutions, deliberate, and decide. So when planning different stages, it is necessary to agree on the role of these actors: how they are to be represented, how they will express their views, and what part they will play in the actual decision-making.
A constitution has several dimensions. A distinguished authority on constitutions, the late Professor Kenneth Wheare, drew a distinction between those who regard a constitution as primarily and almost exclusively a legal document in which, therefore, there is place only for rules of law and for practically nothing else, and those who think of a constitution as a sort of manifesto, a confession of faith, a statement of ideals, a “charter of the land” (Wheare 1966). Since he wrote this in 1966, the debate over the proper function of constitutions has intensified.
It is useful to have deadlines for the different stages of the process; these are usually set out in legislation or in a founding document. But deadlines must be carefully considered, for too- short deadlines may limit public participation and may give the impression of the process being manipulated, while long deadlines may stretch the process unduly when the need is to provide closure and establish a new order. Processes tend to exceed original estimates or stipulated deadlines. There are various reasons for this: the complexity of the process, a slow start, a genuine underestimation of the time required, procuring financial and other resources, emergencies, and the selfish interests of delegates, commissioners, and the staff of associated institutions in prolonging the process.
Deadlines can be useful, but they require an enforcement mechanism—some way to penalize those who do not meet them. The reality is that deadlines are often missed because political will is lacking or some outstanding questions from the past have not been dealt with. (A good example is the Nepal process.) Constitution-making processes are now quite complex, requiring consensus at different stages for them to move on, but it is easy to assume erroneously that the process will be smooth.
Fundamentally, a constitution is the basis for the organization of the state. The state is the mechanism through which a society provides for the exercise of political, administrative, and judicial powers in order to ensure law and order, the protection of the rights of the people, and the promotion and regulation of the economy. As the notion of the sovereignty of people has superseded other beliefs about the source of ultimate authority, the constitution has come to be regarded as a contract among the people on how they would like to be governed. In most cases this is a fiction, as the people may have had no substantive role in making, or even influencing the decisions about, the new constitution. However, due to the notion of people’s sovereignty and the fundamental right of the people to participate in public affairs, there is a tendency, indeed a compulsion, to promote people’s participation in constitution-making (which is part of the inspiration for this handbook).
But the idea of a constitution as a social contract derives from another recent development—a contract not among the people to which each individual is a party, but among diverse communities in the state, often relatively new, where the bonds among the different communities are few and weak. Communities decide on the basis for their coexistence, which is then reflected in the constitution, based not only on the relations of the state to citizens but also on its relations to communities, and the relationships of the communities among themselves. In such situations, the constitution sometimes provides for “partnerships” among the communities in government and other forms of communal power sharing.
Sometimes the most difficult task in constitutional reform is building consensus about the need for reform, the type of reform, and the process for achieving reform. In some situations the need for reform is obvious to all—for example at the moment of independence, or after a revolution (e.g., as in Spain, Hungary, and Poland). Often reform is resisted by those in power, such as Marcos in the Philippines and Moi in Kenya from 1991 to 2000—they took office and attained power through the existing constitution. Sometimes a minority, excluded from government, wants reform but the majority resists it (if necessary by force of arms), as in Sri Lanka from the 1980s to 2009. In these situations the agreement to reform (or talk about reform) comes only after an intense conflict in which many lives may have been lost (as in South Africa, Sudan, and parts of India). These days it is not unusual that an agreement to consider or negotiate reform is the result of external pressure (as in Afghanistan, Cambodia, Kenya, Sudan, and Timor-Leste).
The agreement could be no more substantial than a decision to meet to consider reform, or it could be quite wide ranging, touching the areas of reform, the principles underlying reform, and the institutions for negotiation and the making and approving of reform measures. In conflict or postconflict situations, parties are unlikely to agree to talk about reform unless they feel that their critical interests will be protected. Thus, a prior agreement or understanding about the safeguarding of these interests, and about the fundamental constitutional principles to be incorporated in the final constitution, is often a precondition for negotiations. If the international community becomes engaged, then the incorporation of human rights as expressed in international treaties is likely to be mandatory.