1.2.1 Changing ideas and practices of constitution-making

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).


1.4.9 Drafting the constitution

When we talk of drafting here, we make a distinction between the process by which decisions are made on the content of the constitution and the process of writing it. For the first, there are several options. Traditionally the draft constitution was prepared by the legislature or the constituent assembly, usually through a committee. The assembly also debated and adopted the text of the draft. These days, many drafts have been prepared by a body other than the one that debates and approves the constitution. Such a body is generally called a commission; it is usually supposed to consist of experts (most in law, but also in economics, political science, and public administration). If the commission prepares the draft, it will normally be bound by certain predetermined goals and key elements of its procedure (often including consultation with the people). The assembly, being a representative body, has a greater degree of autonomy in determining both values and procedure. (See part 3.1.2 for more on commissions and assemblies.) The commission-based process has greater scope for experts, the other for politicians. How expert opinion is to be balanced by views that are more political or “populist” is decided in part by this kind of division of responsibilities.

The advantage of a commission is that this part of the process—the vital decisions on the draft constitution—can to some extent be distanced from political parties, tap expert knowledge, promote public participation, and formulate proposals oriented toward national rather than sectarian interests, and can consequently provide a fair basis for negotiations, facilitating a compromise. However, the composition of the commission is often affected by the appointment of people, not necessarily experts, as surrogates for other, usually political, interests.

Most countries have to make a choice between the normal legislature and a specially convened body to create the constitution. Two sorts of factors influence the decisions. One we may call political: historical tradition; the need for legal continuity (changes made in the way that is set out in the constitution); the legitimacy of the legislature (if widely respected, it could be entrusted with the changes); the dominance of political parties (which tend to favor the legislature); and the feasibility of fresh elections (whether before or after the process). The other factor is strategic: which body is more likely to be less selfishly interested in the outcome (the commission versus the legislature); the desirability of including representation from all sectors of society (suggesting a specially convened constitutional assembly); a value placed upon civil society (leading to a participatory process); and the urgency with which the constitution must be completed (which would favor the legislature). (See part 3.1.2.)

The actual drafting (writing of the text) is normally, and should be, left to legal drafters, who will decide on the structure (architecture) of the constitution and the language of the text. The temptation to allow assembly members to draft the text should be resisted. The fixed and relatively well understood meaning of legal terms serves well the need for precision and consistency. Drafting is also not a suitable task for a large body of people. It is important to choose drafters who have experience drawing up constitutional instruments, which are in many respects different from ordinary legislation. As far as possible, simple language should be used. Drafters should be given the freedom to use their professional judgment on the architecture and text of the constitution, but they should respect the policy decisions made by the assembly. However, it is quite proper for them to draw to the attention of the assembly a decision that seems to be unworkable, or goes against fundamental constitutional values, and then seek fresh instructions. (See part 2.6.2.)


1.2.2 Can the constitution-making process be designed?

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.


1.5 Assessing the impact of the constitution-making process

The processes of constitution-making described in this section are of recent origin, a response to the circumstances outlined above. There is not enough research on the impact of the processes in terms of reconciliation, permanence of peace, empowerment of the people, consolidation of democracy, growth of social solidarity, or economic prosperity. With the expansion in the scope of constitutions, especially those with ambitious social and economic agendas, the stakes in their orientation and content have increased and the processes can in these circumstances easily become contentious. There can also be tension for constitution-makers between pleasing the international community and pleasing local interest groups. There is little doubt that such processes introduce the people to a host of political and public issues and provide some education in the mechanisms of the state. But this knowledge is often fragmentary and subject to various interpretations, some clearly spurious and intended to mislead rather than inform. It is therefore necessary to have safeguards against blatant abuse, and oversight by watch bodies. Close attention should be paid to the dynamics of the processes. Correct information and honest analyses of the issues should be provided. The succeeding sections of this handbook address these matters.


1.6 Who does what? A table

Table 2 shows how the tasks that are carried out in a constitution-making process identified and discussed in part 2 may be performed by the variety of bodies and institutions identified and discussed in part 3. It is not necessary to have a particular body to perform a particular task. In the course of this handbook we may sometimes suggest that a certain body is often more suitable than another for a specific task. But we are conscious that national traditions, time and financial pressures, and other factors may limit the choice in a given country. The table is not a prescription—it is merely meant to clarify the relationship between the tasks and the institutions.

To take a few examples from the top rows of table 2:

  • Preparing a road map or timetable for a process could be done by a constituent assembly (if that assembly were in charge of the process). Where a constituent assembly does not exist, or comes late in the process, the road map may be prepared in a law or by the legislature, or it may have been specified in a peace agreement or a “roundtable” process or by the government. Often, civil society and political parties (and sometimes the international community) will have some input—though they do not have the power to make a legally binding road map.
  • Generating ideas for the new constitution is something in which all sectors of society can participate.
  • Developing guiding principles for the process and content of the constitution may be done in different ways. Sometimes a constituent assembly has done this near the beginning of the process. Sometimes principles are laid down in law, or through political agreement (in a peace process or by political parties); civil society again may participate.

 

Table 2: Who does what?

Tasks
Constituent assembly
National conference
Legislature
Roundtable
Constitutional commission
Other bodies
Peace process parties
Special bodies
Experts
Electoral management bodies
Governments and their departments
Courts
Referendums
Civil society
Political parties

Starting the process

            n       n     n n

Road map

n n n       n   n   n     n n

Generating ideas

n n n n n n n n n   n     n n

Guiding principles

n n n n n   n   n   n     n n

Civic education

n n n   n n     n n n     n n

Consultation on draft

n n n   n n     n n n     n n

Other forms of consultation

  n n   n n n               n

Making submissions

            n       n     n n

Receiving and processing views

n n n   n n   n n n n   n n  

Resources management

n n n n n n   n n n       n  

Managing media

n n n n n n   n n n   n      

Managing international actors

n n n n n n   n n            

Making procedural rules

n n n n n n   n     n        

Determining agenda of issues

n n n n n n n n n   n     n n

Making choices on issues

n n n n n n n n n   n   n n  

Dealing with divisive issues (special bodies)

              n       n n   n

Ensuring technical coherence

                n            

Preparing concrete proposals

n n n n n n     n   n        

Technical drafting of text

                n            

Adoption of constitution

n n n n               n n    

Implementation

    n           n   n n   n n

Dealing with problems

              n     n n   n  

Monitoring and evaluation

n n n   n       n   n        

Responding to failed processes

    n n n           n     n n

1.3.1 The importance of a design

The design of the process has a number of components. The principal focus is the method whereby the constitution is made and enacted, which includes the key actors and forms of representation and the mode of enactment. But it might also include interim arrangements intended to operate until the new constitution comes into effect, the objectives and principles determining the content of the constitution, the different stages of the process, and the management and funding of the process. The design also acts as a road map or timetable, setting out the sequence of and deadline for the activities and decisions leading to the adoption of the constitution. The precise scope of the design varies from one experience to another: some are minimalist (as in Cambodia [1993]) and others are quite detailed (as in Uganda [1995] and Kenya [2005]).

The design can take many forms. It usually involves an agreement among the key actors (principally political parties), legislation (standing alone or as part of an interim constitution), or an international agreement or treaty (in which case it is likely to be part of complex arrangements, including a cease-fire and the establishment of peace). The greater the consensus on the process, the higher the chances of success (although, as we have already noted, the process produces its own dynamics that can call into question aspects of the process).

Constitution-making processes have been designed in various ways. During decolonization, the colonial power sets up the process. A most elaborate process, in terms both of procedure and of substance, was imposed on India [1950] or the making of its independence constitution—to which India’s Congress Party reluctantly agreed. However, after the creation of Pakistan, Indians were able to simplify the process. In the post-Independence period, often the process is decided by the government, sometimes after discussions with relevant groups (e.g., in Tanzania in 1965 when it became a one-party state, in Zambia in 1991 when it moved away from a one-party state, in Uganda in 1982, in Ghana in 1992 and lastly in Nigeria in 1979, 1989 and 1999. The Iraq process [2005] was designed essentially by the United States, which was an occupying force (although it made certain important concessions to local groups).

Frequently the process would be negotiated among political parties (as in South Africa [1996], Fiji [1997], and Kenya [2010]) or a larger range of interest groups (as in the francophone states in West Africa through national conferences). Increasingly, in conflict and postconflict situations, the decision on the design is part of a complex set of arrangements, including a cease-fire, disarmament, and integration of the armed forces.

The design is often made by parties engaged in conflict. Nepal in 2006 was unusual in that an agreement was made without outside intervention. Mostly, agreements on the process in these situations have involved the international community in significant ways. A prime (if somewhat unusual) example is Bosnia-Herzegovina [1995], where the constitution itself was made by the international community in an army barracks in the United States—there really was no process. Usually, the design (or at least its outline) is made at international conferences or through international negotiations (as in Afghanistan and Cambodia), or under intense mediation by the dominant interested states, mostly Western (as in Sudan, the states of the former Yugoslavia, and Kosovo). The Somalia process was agreed to through the mediation of the Intergovernmental Authority for Development with facilitation by the Kenyan government in 2004.

Not surprisingly, the principles and degree of detail vary depending on the context and the primary parties involved. The process is most detailed when it is negotiated locally, and is sparse when the international community is involved. (Sudan seems to be an exception.) A smaller role is played by experts when the international community is involved. The question of the ownership of the process is implicated in the mode of decision-making on the process, as is the degree of engagement of the people.

There are considerable advantages to a designed process. It is an important way to identify the key actors and to inform the public of the objectives and the road map, including their own role. It provides guidance on procedure and timing to those in charge of the management of the process. It can minimize disputes about the respective roles of actors. It can give an indication, at least, of the resources needed. The rules for the drafting and adoption of the constitution often influence the outcome of the process in terms of its legitimacy and of the orientation and content of the constitution. It may be the case, for example, that when political parties dominate, greater attention is paid to the system of government. And the more participatory the process, the more aspirational the constitution is likely to be.


1.4 Tasks and responsibilities in constitution-making

Constitution-making has thus become complex, involving a number of tasks and stages andthe proliferation of actors and institutions. An essential component in designing a process is to review the tasks and decide how to allocate them and obtain the resources needed to carry them out, and the sequence in which the tasks are undertaken. Subsequent sections discuss in some detail the options available for each of these issues, and some of the main tasks often undertaken as part of a process.

If the constitution is made in settled times, there are many options for the process, including a high degree of public participation. If the country is coming out of internal or external conflict, there may be an inclination toward a more controlled process, with limited or no public consultation. Increasingly, negotiations held during an ongoing conflict take the form of a constitutional settlement. In this case the process is confidential and often secret, and almost completely dominated by leaders of “warring factions,” with little room for wide public participation.