2.2.3 Public consultation

For our readers interested in designing a participatory constitution-making process, the decision will usually not be whether to hold public consultation but, rather, how best to do so. While there are contexts where public consultation does not occur, or does so to a limited extent, there is no doubt that public consultation has increasingly become a feature of modern constitution- making. It is held on issues related to how the process is conducted and even on whether a process should take place, as well as about the content of the constitution.

In a divided society, the constitution can be much more than a set of rules for the structure of government. The constitution-making process is a unique moment—an opportunity to build consensus, a shared sense of identity, values, and purpose, and to resolve major differences. To have any realistic hope of achieving such outcomes, constitution-makers must be committed to a credible and transparent process where the concerns of the people are central and where the people know that choices on constitutional issues take account of their views. Such a process involves the constitution-makers actively listening to, accurately capturing and analyzing, and seriously considering the views of the people. It also includes providing feedback about how decisions were made and (in particular) how views from the people were considered.

In the following discussion we first outline the types of issues about constitution-making processes and the contents of the constitution about which public consultation often occurs, the legal basis for public consultation, and people’s views as one source among many for making decisions during a constitution-making process. We then identify the bodies that typically conduct public consultation, key reasons for doing so, and some guiding principles for conducting a public consultation process. We also discuss the various methods that can be used to consult, and how constitution-making bodies analyze and report on the views gathered.

In doing so we seek to assist those wishing to engage in public consultation by considering a number of key questions, such as:

  • What will be the goals and objectives of the public consultation?
  • Which body will conduct the public consultation?
  • What should be consulted about, at what stage of the process, and why?
  • What are the potential risks (e.g. security of public sharing views) and benefits of public consultation (e.g., increased ownership of the process and constitution)?
  • Who should be consulted (see box 9)?
  • What kind of information is needed or desired (e.g., all of the views of the public, views on specific issues or a draft proposal, the views of particular groups on specific topics (perhaps groups that have been historically marginalized and may not be adequately represented in the official body) what are divisive issues in society, or whether the views of elites agree withthose of the public)?
  • What methods will obtain the information needed or achieve the result desired?
  • What are the guiding principles that will facilitate meaningful public participation in the process?
  • How will views be gathered, received, analyzed, and used?
  • How will feedback be provided to those consulted about what the constitution-makers learned and how the views were considered, and if so when will this be done?
  • What resources will be needed, and are they available, or should a more limited process of public consultation be conducted?

Public consultation on both the constitution-making process and the contents of the constitution

It is sometimes assumed that public consultation in a constitution-making process relates only to issues about choices of the contents of a new constitution. While in most cases the main allocation of effort toward public consultation does relate to such issues, there can also be significant efforts made in relation to issues of process—so much so that it is helpful to discuss public consultation on process separately from that on contents of the constitution.

Public consultation on issues about the constitution-making process

Public consultation on process issues most often occurs before a constitution-making process begins, but can also be held at various points during a process (as discussed below). Involving the people in discussions and decision-making about the process, including how it is to be structured, can be especially important in a divided society. In such cases, not only can perceptions that such an important process involving decisions about the future of the state might be structured to benefit particular groups (especially those in power) be divisive, but they can destroy the credibility of a process and any constitution resulting from it. More generally, public consultation in advance of a process can help decision-makers determine whether a process is needed or wanted and how it should be carried out, and can be used to encourage key stakeholders or political actors to commit themselves to the process. Public consultation on process may well be demanded by dissident groups or by civil society (e.g., in Colombia—see box 1).

Public consultation on process issues can help prevent a backlash against an unpopular procedure or approach. In Timor-Leste, the United Nations Transitional Administration did not consult with civil society about its plans for civic education, and it boycotted the official civic education program. Because civil society actors were key partners for implementing the program, the United Nations had to delay the program until an agreement could be reached with civil society about how to move forward.

There are several main categories of constitution-making process issues about which public consultation most often occurs, and varying ways in which such public consultation may be conducted, ranging from a referendum to meetings with civil society:

Whether there should be a constitution-making process. The public consultation may first be about whether constitutional reform is needed and if so whether a new constitution-making process should be established. Public consultation on such issues is sometimes conducted through a referendum (e.g., as in Colombia, Spain, and Venezuela). In Colombia, an election in 1990 was used also to hold a referendum about whether to form a constituent assembly to develop a new constitution. The public voted overwhelmingly to establish the body. (See box 1.) Such a decision may also be made through negotiations with key stakeholders or some form of general consultation with the public.

How the process should be structured. It is not unusual to engage in public consultation in advance of a process about how the process should be structured, inclusive of such things as what types of institution should be used, selection or election of members of such institutions, mechanisms for public participation, the timetable for the process, and so on. In some cases it will be necessary for warring factions to agree that a constitution-making process is required; indeed, such agreement is often an issue dealt with as part of a peace process and a “comprehensive” peace agreement. Issues about constitutional arrangements (perhaps involving exclusion of significant minority groups from power) may have been a factor in the original conflict, in which case it can be vital to the prospects of a peace agreement not just that there is acceptance that the constitution will change, but also that those previously excluded will have a role in the process that determines the changes. There can, of course, also be public consultation about constitution-making processes in many other circumstances as well, and such public consultation can take many forms. In Afghanistan [2004], women’s groups were consulted about how their representatives should be selected. Sometimes such public consultation has been limited to elite stakeholders. In Timor-Leste [2002], the transitional legislature invited key stakeholders to hearings about how to make the constitution.

How to conduct next steps in an already established process. The people are sometimes consulted about the process even after it has started, in particular when questions arise about the next step in either a continuing process or one that has stalled. Public consultation on next steps can extend to questions on whether there should be changes in previously agreed steps in the process; Uganda [1995] is one example. As discussed in more detail in the case study on Uganda in appendix A.12, consultation with the people by the Uganda Constitutional Commission resulted in a recommendation to the government to remove responsibility from the legislature for the debate and adoption of the draft constitution prepared by the commission, and instead a constituent assembly was established to undertake those tasks.

How to conduct civic education or public consultation. In South Africa, the community liaison department engaged in public consultation with civil society and community leaders about how to conduct legitimate and credible public consultations. Public views on this can also be gathered through a website, social media tools, or other cost-effective methods. To reach marginalized groups, public consultations can be held with them directly.

Public consultation on issues about the contents of the constitution

The most intensive and time-consuming public consultation is commonly that held on the substantive issues of constitutional reform—those about the contents of the proposed new constitution. Although the following list of situations where public consultation on constitutional issues has been held is not exhaustive, we can say that such public consultation most often occurs at the following stages of constitution-making processes for the following purposes:

Before a process begins, or in its early stages, when the purpose of public consultation is to determine or assist in developing the agenda of issues to be considered as part of the constitutional reform agenda. Public consultation at this early stage is often seen as likely to cause unnecessary delays in the process, and so does not occur in many cases. One example is Uganda [1995], where an initial round of public consultation to identify the agenda involved conducting about 140 seminars attended by almost a hundred thousand people. Subsequently, public consultation about the views of the people on substantive reform issues was conducted largely by reference to the agenda of issues identified in the initial rounds of public consultation. (Determining the agenda of issues is discussed in more detail in part 2.4.1.)

Before a draft constitution is prepared, to receive views about issues of concern, the options for constitutional reform, or both. Increasingly, public opinion is sought before a draft is prepared. (See table 5.) This is commonly the main consultative stage of a process, and may sometimes cover an extended period. Among the main reasons for consultation at this stage, two require particular mention. First, as few processes have the early special phase of public consultation on the reform agenda that occurred in Uganda, the constitution-makers are able to ensure that their agenda for reform takes account of the needs and aspirations expressed by the people. Second, the receipt of views from the people is usually intended by constitution- makers to assist them in making decisions on what (if anything) the new constitution will provide in relation to the main issues.

After either a detailed proposal for a draft constitution or an actual draft has been prepared, and before any draft is finally debated and adopted, to receive views on the proposal or draft of the constitution. Public consultation at this stage is not so common as it is in advance of a draft being prepared. One reason for this is the significant organizational and resource issues that can be involved. Copies of the draft will need to be printed and distributed widely, or at least adequate explanatory materials (providing enough information for meaningful public consultation) will need to be produced. All such materials may need to be translated into local languages. In South Africa [1996], 4.5 million copies of the draft were distributed in eleven languages. In Bougainville [2004] there was public consultation on two main drafts that were quite widely circulated.

Before constitution-makers reach decisions on potentially divisive issues, to help them both identify and make decisions on such issues. Constitution-making processes often have difficulties in dealing with divisive issues. (See part 2.5.2.) The people’s views are quite often used to identify and resolve divisive or contentious issues, but are seldom highlighted as the key source. Uganda is an unusual case in that statistical analyses of views submitted were identified by the constitutional commission as one of the main sources it used to reach a decision on the divisive issues.

Constitution-makers may choose to consult at some or all of the points and for the purposes noted, but we are not aware of any recent process where there has been public consultation on all of them. (See table 5.) Many different methods are used in undertaking such public consultation, as discussed later in this part.

There is debate about whether the views of the people should be obtained before preparing a draft constitution, after a draft is ready, or at both times. In some countries public views are sought only about the provisions of a draft constitution. If the set of constitutional issues being dealt with is narrow this can quickly focus the public consultation on specific proposals. The potential dilemma is that other issues about which members of the public have concerns may be excluded from debates. There may be frustration on the part of groups that feel that the draft does not reflect their concerns or that the issues have been decided prematurely. The constitution-makers may also be less inclined to change a draft that took time to negotiate and prepare. Ideally, the people’s views should be obtained both in advance of a draft being prepared (to assist in its development) and after it has been completed (to test whether it meets the people’s concerns).

Table 5 illustrates the use of public consultation on the contents of the constitution in twenty constitution-making processes. The table illustrates that public views are often sought before a draft is prepared, and again afterward. Holding public consultation prior to the drafting of the constitution often broadens the issues that will be considered because the people share views and aspirations that go beyond the initial reform agenda (which is usually developed mainly by the constitution-makers). If the concerns of the public extend to the development of the constitutional reform agenda, the possibility of the public consultation leading to a long and unwieldy text may increase. However, a process with no public consultation can lead to the same result (e.g., Venezuela [1999]).

Table 5: Stages of a constitution-making process where public consultation took place on the content of the constitution

Constitution-making process Public consultation on agenda of issues to be considered Public consultation on the content of the constitution before drafting Deciding changes to drafts of the constitution
Papua New Guinea [1975] n
Peru [1979] n
Nicaragua [1987] n n
Brazil [1988] n
Benin [1990] n
Colombia [1991] n
Ghana [1992] n
Tanzania [1992] n
Uganda [1995] n n
South Africa [1996] n n
Eritrea [1997] n n
Fiji [1997] n
Albania [1998] n n
Rwanda [2003] n
Bougainville [2004] n n In a succession
Kenya [2005] n n
Thailand [2007] n n n
Bolivia [2009] n
Kenya [2010] n n
Nepal [ongoing process] n n

Box 15. Examples of legal mandates to conduct public consultations

In Afghanistan, a presidential decree mandated the constitutional commission to:

  • facilitate and promote public information on the constitution-making process during the entire period of its work;
  • conduct public consultations in each province of Afghanistan, and among Afghan refugees in Iran and Pakistan and, where possible, other countries, to solicit the views of Afghans regarding their national aspirations;
  • receive written submissions from individuals and groups of Afghans within and outside the country wishing to contribute to the constitutional process;
  • conduct or commission studies concerning options for the draft constitution;
  • prepare a report analyzing the views of Afghans gathered during public consultations and make the report available to the public; and
  • disseminate, and educate the public about, the draft constitution.

The Constitution of Kenya Review Act (2001) mandated that, within two years, the Constitution of Kenya Review Commission would:

  • conduct and facilitate civic education in order to stimulate public discussion and awareness on constitutional issues;
  • collect and collate the views of the people of Kenya on proposals to alter the constitution and on the basis thereof, to draft a bill to alter the constitution for presentation to the national assembly (parliament); and
  • carry out or cause to be carried out such studies, researches and evaluations concerning the constitution and other constitutions and constitutional systems as, in the commission’s opinion, may inform the commission and the people of Kenya on the state of the constitution of Kenya.

Section 18 of the act required the commission to:

  • visit every constituency in Kenya to receive the views of the people on the constitution;
  • without let or hindrance, receive memoranda, hold public or private hearings throughout Kenya and in any other manner collect and collate the views and opinions of Kenyans, whether resident in or outside Kenya, and for that purpose the commission may summon public meetings of the inhabitants of any area for the discussion of any matter relevant to the functions of the commission.

The Uganda Constitutional Commission Statute (1988) recognized “the need to involve the people of Uganda in the determination and promulgation of a national

Constitution that will be respected and upheld by the people of Uganda” and required the constitutional commission to work toward “achieving a national consensus on the most suitable constitutional arrangements for their country,” and empowered the commission to:

  • “seek the views of the general public through the holding of public meetings and debates, seminars, workshops and any other form of collecting public views”; and
  • “stimulate public discussions and awareness of constitutional issues.”

Legally mandated public consultation, and public views as one source among others

Increasingly, legal instruments establishing or regulating constitution-making processes (e.g., an interim constitution, statute, presidential decree, parliamentary act, or rules of procedure for a constituent assembly) mandate a process of public consultation. They may go further and require the constitution-making body to take into account the public’s views when preparing the constitution and list the tasks that must be carried out, including analyzing the views and when and how to provide feedback to the public. (See box 14.)

In most such cases there has been a prior history of violent conflict in the country in question, usually conflict related to issues of constitutional significance. As a result, the constitution- making process has been seen as an opportunity to resolve such conflict. Of course, merely requiring public consultation in the terms of the legal mandate does not of itself ensure that a process will in fact result in conflict resolution, for the underlying causes of violent conflict are seldom readily resolved. Indeed, the constitution-making process itself may heighten tension and contribute to the risk of further conflict.

Stipulating a requirement for public consultation in the legal mandate may often be important in postconflict situations, as it could be expected to put pressure on constitution-makers to find constructive ways of consulting previously opposing groups. On the other hand, in some processes that have not had a detailed legal mandate or detailed plan there has been disagreement among constitution-makers about whether to conduct public consultation, to what degree, and at what stages; how to analyze and consider the public’s views, and for what purpose; and whether to report back to the public on such matters (e.g., as in Timor-Leste [2002], Nepal [ongoing process], Iraq [2005], and Ghana [ongoing process]).

Box 16. Uganda: The use of views

In Uganda [1995], while the law establishing the constitutional commission directed the commission to achieve “a national consensus” on constitutional issues, and required it to “seek the views of the general public through the holding of public meetings and debates, seminars, workshops and any other form of collecting public views,” it also required the commission “to study and review the [then existing] Constitution” in order to make proposals for a new constitution that would, among other things, “establish a free and democratic system of government that will guarantee the fundamental rights and freedoms of Ugandans.” As a result of such diverse directives, the commission stated in its final report that it used four main sources in framing its recommendations for a new constitution. They were: the people’s views; the commission’s own study of “our cultures, common history, problems and people’s aspirations”; its “mandatory review of the [then] current Constitution”; and “comparative study of constitutional arrangements of other countries.”

Even when the legal mandate of a constitution-making body requires it to use public views as a source in making decisions on constitutional issues (as in Uganda [1995], Fiji [1997], and Kenya [2005; 2010], other sources are stated or implied in the legal instrument providing the mandate. Such sources may include principles of democracy, international human rights law, and so on. While the people’s views may be important, constitution-makers, using other sources, will allocate their research and analysis efforts in other ways. That can result in developing views on constitutional issues that are different from, and even contrary to, the main thrust of views submitted by the people. The diverse sources made available by such legal mandates are almost always reflected in the reports that some constitution-making bodies make. (Such reports are discussed in part 2.2.4.) These reports generally make it clear that the views of the people are not determinative of all issues. For example, few constitution-making bodies have placed heavier reliance on people’s views than the Uganda Constitutional Commission, which made extensive use of them in resolving divisive issues. But in its final report it stated that although people’s views were its “primary and most important source,” it also used three other sources. They were the commission’s own “observations and analysis of society”; its review of Uganda’s previous constitutions; and a comparative study of constitutional and political arrangements in other countries.

Constitution-making should aim to balance conflicting views, work toward consensus and compromise, and protect minority rights. Although many countries have statistically analyzed the views gathered, the predominant public view or opinion does not necessarily prevail. It is normal for constitution-makers to need to balance a number of competing considerations when reaching decisions on major issues, and they would not normally seek to derive answers from a public opinion poll. For example, in South Africa the public overwhelmingly demanded the death penalty in the constitution. The constituent assembly weighed this against international human rights standards and the need to break with a violent past, and excluded this demand from the final text (leaving it to the courts to decide the issue by reference to the human rights provisions of the new constitution, which they soon did, deciding to declare the penalty unconstitutional).

Finally, a note of caution in relation to the consideration that consultation with the public may raise high expectations about what the constitution will provide. A draft that has overlooked something people viewed as important may disillusion the public about the process and the constitution. It may be important to provide a mechanism to monitor the translation of people’s views into a constitution-maker’s draft. For example, if a commission is consulting and preparing the draft, the legal instrument providing its mandate could require it to transmit to the main deliberative body both the draft text and a record of the views received.

Which body conducts public consultation

A constitutional commission established to prepare a draft constitution for submission to a constituent assembly or a parliament is often asked to consult the public. But where a larger body such as a constituent assembly is responsible for most steps in the process, including preparing the initial draft, it may establish its own special committees (e.g., Bolivia in 2009 and Nepal in 2010) to consult the public.

Governments have also set up special bodies mandated not only to consult the people before creation of the constitution-making body but also to provide it with a report on the public consultation (e.g., Colombia [1991] and Timor-Leste [2002]). This may help speed up the process because views can be collected while preparations for electing the main constitution- making body are made. The disadvantages of this approach are that the constitution-makers:

  • may have fewer opportunities to hear the concerns and aspirations of the public firsthand or to engage them in a discussion on the key issues and also build trust in the credibility of the process; and
  • may tend to ignore or mistrust public consultation reports in which they were not involved firsthand.

Both international and local civil society organizations have conducted public consultations to try to open up the process and engage the public. If the civil society actors are highly respected and credible, their public consultation reports may gain the attention of the constitution-makers. In Timor-Leste, the United Nations’ official reports were ignored because they were seen as a foreign product, but members of the constituent assembly did read public consultation reports prepared by the respected local human rights group Yayasan Hak.

Reasons for, and claims about the impacts of, public consultation

Justice Benjamin Odoki, the chair of the Uganda Constitutional Commission, stated:

The manner in which a constitution is finally adopted by the people is very important in demonstrating the legitimacy, popularity and acceptability of the constitution. . . . To command loyalty, obedience, respect, and confidence, the people must identify themselves with it through involvement and a sense of attachment. . . . The involvement of the people in constitution-making is therefore important in conferring legitimacy and acceptability to the constitution (Odoki 2005: 276).

Similar reasons for holding extensive public consultation have been echoed by other constitution-makers. Such views are in fact part of a wide spectrum of reasons why constitution- makers may undertake such activities, which may include promoting a deliberative process and opening public debate to a diversity of views so as to contribute to a national consensus on the constitutional framework, including the values the nation should be founded on:

  • legitimizing the process and the constitution that emerges from it by ensuring that the process is “open” and “democratic”;
  • promoting a sense of public ownership of the process and the constitution;
  • determining what are the divisive issues or the extent of public support for constitutional options in relation to such issues;
  • facilitating a political transition by encouraging change in the political system, in particular by seeking views of those who had previously been marginalized or excluded from the political and social life of the country (e.g., the process of seeking people’s views in South Africa [1996] was in part focused on involving black South Africans for the first time in the political process);
  • conducting dialogue with citizens on issues of national importance;
  • meeting the demands of groups with interests in a process—for example, people may hold demonstrations or demand to be consulted, or the international community may only fund or accept the legitimacy of the process if public consultation is conducted (e.g., the United Nations Development Programme would not fund a constitutional reform process in the postconflict Solomon Islands unless the constitution-makers held public consultation);
  • serving as a public relations campaign to improve the standing of the government, or of the process, rather than as a mechanism to genuinely listen to the views of the people; and
  • manipulating the consultative process so that the “results” support particular interests or agendas.

Of course, consultation with the people does not always take place or it takes place only in a limited way; it would be possible to make a similar list of the reasons why it does not happen. These include established traditions about decision-making that do not involve direct consultation with the people—often in part on the basis that a body such as parliament or a national conference (mainly in countries with Francophone influences; see part 3.1.3) represents the people in any event, making public consultation redundant; perceptions about constitution- making as a matter for politicians and experts; and political and other pressures for the constitution-making process to be dealt with quickly, so that allocating significant time for public consultation is seen as counterproductive.

There is too little research on the impact of public consultation in constitution-making processes to be able to assess the extent to which public consultation achieves or contributes to the achievement of even such clearly laudable goals as the increased legitimacy of a constitution. There is evidence, however, that public consultation may have a more modest impact such as broadening the social agenda of a constitution. For example, women’s involvement in constitution-making, inclusive of consultative processes, has contributed to more gender equity in the process as well as in the final content of the constitution (e.g., in Canada [1982], Nicaragua [1987], Uganda [1995], South Africa [1996], Afghanistan [2004], and Kenya [2005]).

Variations among countries in attitudes to public consultation by government and traditions of interest group organization and representation are important factors in reasons for choices for or against public consultation. In some countries, there is a deep tradition of public consultation, and if the public is not consulted the process will not be viewed as open or credible. More generally there is a growing expectation that public consultation by government bodies should occur in a wide range of situations, including constitution-making. In South Africa, where public consultation about constitutional issues was a new experience for the vast majority of the population, a poll taken by an independent evaluation group found that 83 percent of the people—regardless of race, ethnicity, or age—felt the constituent assembly should consult the public about the new constitution.

There may be far less pressure for public consultation in countries that have traditions of legitimate representational bodies—such as political parties, trade unions, and major NGOs (issues discussed in part 2.2.1, under the heading “Changing modes of making the constitution”). The general public may feel satisfied that the process of aggregating and representing views through established patterns and mechanisms will be followed and that in doing so even marginalized citizens will be heard. However, in divided societies that also have some experience of representative bodies, such as South Africa, the constitution-makers may still feel that it is important to reach out directly to previously marginalized citizens.

In countries emerging from violence, consultative processes can have other purposes. They can provide opportunities for the public to meet and sit with leaders who have previously been at war about contentious issues and are now cooperating as part of a constitution-making process. As in South Africa, such an experience can send a powerful message about the potential “transformational” nature of the process and the future possibilities for the country—both to elites and to the public.

One of the most important reasons for public consultation concerns the benefits of face-to face consultative meetings where constitution-makers discuss with citizens issues that they would not have had the chance to explore otherwise. The constitution-makers may be surprised at the sophisticated level of the discussions—even in poverty-stricken areas where few read or write. In Afghanistan [2004], commission members were often surprised to learn that rural populations were fairly tolerant of diverse religious beliefs and views. Public consultation has given many constitution-makers (even those initially opposed to public consultation) an increased appreciation of the diverse views, aspirations, and needs of different gender, ethnic, socioeconomic, or geographical groups.

On the other hand, some public consultation has led to demands for constitutional provisions that may be at odds with other sources of guidance being used by constitution-makers, such as international human rights norms. Examples may include demands for the death penalty or the exclusion in various ways of certain minority groups in society. However, understanding the reasons behind such views can help constitution-makers better address the concerns (see the discussion later in this part, under the heading “public consultation meetings”), and promoting dialogue about tolerance and why the new constitution should adhere to international human rights norms and protect minority rights.

The globalization of ideas and experiences through the Internet, social media, and other means has led to growing awareness in many countries of the trend toward participatory constitution- making. This has led to an increased expectation that constitution-making processes will include extensive provisions for consulting the public. For example, in Timor-Leste [2002], the Asia Foundation organized seminars on participatory constitution-making and brought speakers to discuss the experiences of Kenya, Papua New Guinea, South Africa, Thailand, and Uganda.

Hearing these stories of popular participation contributed to an increased demand for similar engagement in Timor-Leste.

The majority of the Timorese constituent assembly members felt that they could adequately represent the views of their constituencies (despite a weak and nascent political party system in which parties did not campaign on a platform based on specific proposals for provisions of the proposed independence constitution). The constituent assembly initially refused to consult the public on the draft constitution. The demands of public demonstrators, civil society monitoring groups, members of the international community, and the media led the constituent assembly to reconsider.

Some guiding principles for conducting a public consultation process

There is a trend toward consulting the public in a constitution-making process, but there has been little reflection about what constitutes a genuine and effective public consultation process. Unlike the situation with elections, there are no established standards for assessing whether a constitution-making process has been “free and fair.” Determining whether standards should be developed is an issue beyond the scope of this handbook. However, many processes have spent large sums of money consulting the public, only to have the views ignored or never analyzed. There have been numerous reasons for this, including insufficient resources or time to analyze the views, a lack of interest in using the views, and constitution-makers feeling that they have already heard firsthand the views of the public and do not require additional analysis of the input. (See part 2.2.4.)

However, at a minimum, for the consultation to be credible the views should be recorded, seriously considered and the public informed about how the views were used.

The following broad principles will facilitate a credible process—they are based on emerging standards of good practice (drawing on our own experiences of assisting with public consultation as well as numerous other practitioners):

  • Planning well in advance of the public consultation;
  • Establishing realistic timetables;
  • Preparing the public to participate meaningfully;
  • Being transparent;
  • Being representative;
  • Ensuring that the consultative process is accessible, secure and inclusive;
  • Respectfully listening to the public’s views;
  • Faithfully recording, collating, analyzing, and considering the views submitted;
  • Carefully considering the public’s views when making key decisions;
  • Being accountable and providing feedback;
  • Ensuring that the consultative process is nationally owned and led; and • Evaluating the consultative process.

Planning well in advance of the public consultation

One of the lessons learned from past public consultation processes is that the constitution- makers should begin work as early as possible on a strategic plan for public consultation. It needs to include a detailed set of tasks for every phase of the public consultation process.

Such a plan should seek to ensure that everyone conducting the public consultation is clear about what they are expected to do before, during, and after the process. It should include a detailed operational plan and accompanying budget. (See box 23 below, on making a strategic plan.) If the process will be highly participatory, with numerous phases, the planning process can take several months.

Box 17. Nepal 2009: Problems that arise when a process is poorly planned

The Nepalese public consultation process in 2009 is a cautionary tale about launching a public consultation process without a clear and agreed upon plan. There was little effort to prepare the public for the consultations. The constitution-making body launched into the consultation process by requesting that the members of the public phone in, e-mail, or send their views by mail. When few responded, a three-hundred-item questionnaire was prepared and distributed at the face-to-face public consultation meetings. However, the questionnaire was not tested beforehand, and it was overly complicated and confusing. Highly educated Nepalese had a hard time understanding the questions.

Additionally, the public did not have sufficient time to review and answer the questions. The respondents were expected to hand in the questionnaire at the end of the face-to- face meetings. The meetings were organized at the last minute with little advance notice, there was no harmonized plan for conducting the meetings or recording the views, and they were poorly attended. The exercise did generate thousands of views. But the constitution-making body did not have a plan for analyzing the views and reporting the results. In the end, each member of the constitution-making body was given about a thousand submissions to analyze. The methodology ranged from ignoring the submissions to handing them over to civil society actors or friends to assist with the analysis. The resulting analysis did not accurately reflect the views gathered, and at times was manipulated to suit the members’ own views.

Establishing realistic timetables

If widespread face-to-face public consultation meetings are planned, then depending on the specific context it can take several months or more to plan the process as well as to prepare the public to participate. It could take many more months to hold the public consultation. Analyzing the views may also take several months, depending on such factors as the form in which the views are received, the number of staff members available to analyze the data, and so on. (See part 2.2.4.) Reporting back to the public on the results and using the views to prepare a draft constitution or report may take an additional six months. Yet many constitution-making processes allocate less than a year (and at times only a few months) to complete all of these tasks in a highly participatory process. Planning a realistic timetable for credible public consultation requires identifying each step of the process and how long it will take to complete each step of the process.

Preparing the public to participate meaningfully

Civic education prior to the public consultation is critical for the public to participate meaningfully. (See part 2.2.2.) This will assist individuals, groups, and organizations to understand the process, how to participate and how to give their views with the constitution makers.

Being transparent

Those consulting should be transparent about the public’s role in the process, the deadline for receiving views, how to provide views, and how the views will be recorded, analyzed, and used. They should also inform the public about how they will receive feedback, in particular about how the views will be used and how they will know how the views affected the decision-making process. The views received should be available for the public to review. In Iceland, where the security of those sharing views is not considered a problem, all views are posted on the council’s official website. (See box 22 below.)

Being representative

The body or group holding a public consultation should be as diverse as possible. Smaller subgroups of the constitution-making body may be needed to ensure that as many face-to-face public consultation sessions as possible can be held. Such subgroups should be as representative as possible. For example, each group should include at least one woman so that women do not feel the process is being led only by men. This principle applies to other relevant groups such as minorities or political parties.

Ensuring that the consultative process is accessible, secure and inclusive

Here are some measures that can help ensure accessibility, security and inclusion of the process (see box 9 for a discussion of issues to consider to promote an inclusive process):

  • Notice. Provide sufficient notice about how and when to participate. Different social groups may need to be reached using different methods. Notice can be given through the mail or via e-mails, television or radio announcements, posters, announcements by village leaders, leaflets, or the Internet.
  • Language. To ensure accessibility, any important documentation should be in all relevant languages. Simultaneous interpretation at public meetings may be needed. For sight-impaired citizens, copies of the draft constitution and any other important documentation should be in Braille, or an audio recording of the draft being considered should be made available.
  • Venue. For consultation sessions that are open to all members of the public, the venue should be evaluated to determine whether it can be easily reached by public transportation, whether it can be accessed by the handicapped, or whether anyone is excluded (e.g., women from entering a male-only mosque). It will usually be important to go to where the group being consulted lives: in rural villages, slums, prisons, and so forth.
  • Level of formality. Neither a highly formal nor a very relaxed setting may feel appropriate. The cultural norms or preferences of the group or community being consulted will need to be considered. Public consultations should be structured in ways most likely to make participants understand the issues under discussion and feel comfortable enough to share their views freely.
  • Timing of public consultation. It may sometimes be necessary to arrange the consultative meetings to avoid any particular times that could exclude or limit attendance of people due to factors such as gender, occupation, or religion. For example, women may only have limited time periods in which they are free to attend. Consulting in advance about what days and times will work for groups that should be included may be essential.
  • Empowerment measures. To have access to the process, some groups may need encouragement or additional assistance, such as special civic education sessions or transportation to venues.
  • Specific meetings for those who cannot speak freely. If women do not feel comfortable speaking in front of men or youth in front of elders, holding separate face-to-face meetings with women and youth may be critical to hearing these voices.
  • Security. Ensure that sufficient security is provided. If the environment is too insecure, public consultations may not be possible. For example, in Zimbabwe [ongoing process] some people attending public consultation meetings were attacked and others felt intimidated to speak in public for fear of retribution later.

Respectfully listening to the public’s views

Those consulting should not advocate for certain views, defend a draft of the constitution, or correct or criticize any views or options put forward. Ideally, they should play the role of active listeners. However, this does not mean that debate and discussion should be discouraged. In face-to-face meetings, as far as is practicable, there should be enough time to ensure everyone who wishes to speak has the opportunity to do so.

Citizens should be encouraged to express their aspirations for the constitution on the most important basis of all: their experience as citizens of their country. For example, participants should feel free to talk about having no access to clean water or healthcare. They should not be expected to have in-depth knowledge of constitutional issues and what can or cannot be dealt with in a constitution. No one facilitating the consultation should say “This is not relevant.” It is the job of the constitution-makers to take the views and concerns and translate them into constitutional terms as necessary. (See the discussion later in part 2.2.3, under the heading “public consultation meetings,” for discussion of how views expressed by people on issues that may seem to have little connection to the constitution can assist constitution-makers in better understanding the attitudes, beliefs, and concerns of the people, thereby contributing to the constitution-making process.)

Faithfully recording, collating, analyzing, and considering the views submitted

The public consultation will not be credible unless there is a transparent plan for recording and analyzing the views and the public, media and civil society can confirm that these tasks are being done fairly. Part 2.2.4 provides guidance on each of these steps.

Carefully considering the public’s views when making key decisions

A constitution-making body needs to have skilled staff members who can ensure that the views received are made accessible to decision-makers in ways that best enable the views to be considered when decisions are being made. (See part 2.2.4 on the analysis and use of views.)

Being accountable and providing feedback

After the public consultation process is concluded, a final report should be provided that summarizes the results and explains how competing interests or perspectives were balanced and compromises reached. (For further discussion see part 2.2.4, under the heading “Reports of constitution-making bodies on use of the people’s views.”) It can also explain the extent to which public consultation affected the decisions made. In addition, those conducting the public consultation can sign codes of conduct to be held accountable for their conduct. (See appendix C for sample codes of conduct.)

Ensuring that the consultative process is nationally owned and led

Experienced foreign advisers can assist national actors in developing the plan to consult, and perhaps even in implementing the plan if needed. However, the lead roles in a public consultation must be undertaken by the relevant national actors. “Nationally owned” also means that the people should feel ownership of the process. This can be facilitated not only by simply consulting with the public but also by ensuring that the people are satisfied with the mechanisms and plan for public consultation.

Evaluating the consultative process

Evaluation of the consultative process should ideally occur at an early stage. Such evaluations should involve assessing whether the objectives are being met, and determining what is going well and what needs improvement. Ongoing evaluation from an early stage will allow changes to the consultative process to be made as required in order to improve it. Evaluation should be incorporated into the strategic work plan from the start.

Evaluation can be performed by an independent evaluator, by those conducting the process, by the participants themselves, or by a combination of these. In most cases, however, there will be advantages if competent external evaluators have a role.

Choosing methods for consulting the public

There is no single generally applicable and correct model for how to conduct a public consultation process. It is common for constitution-making processes that give a high priority to consulting to use a combination of methods to ensure that as many people as possible are given the opportunity to participate. For example, constitution makers may invite elites to make written submissions or attend hearings on particular issues, and they may travel to far-flung places to hold face-to-face meetings with rural or marginalized groups.

In a society in conflict, the process of constitution-making should serve many purposes. If reconciliation among groups is essential, the methods chosen will need to promote a deliberative process handled with sensitivity, avoiding methods and approaches that may refuel the conflict. This will have to be determined on a case-by-case basis. For example, in a country that has suffered atrocities, engaging in widespread public consultation on the future constitution before some form of healing has taken place may be counterproductive. Expectations for the process also have to be carefully managed otherwise the people may be disillusioned when the process and a new constitution does not lead to the hoped-for result.

Although there are potentially dozens of methods for consulting the public and experts on either the process or the content of the constitution, the methods most commonly used by constitution- makers have been:

  • Nonbinding referendums (see part 3.5 for a discussion of this public consultation method).
  • Requests for submissions—the requests can be made through the media, including social media tools. as well as more traditional methods, such as local leaders or strategically placed posters.
  • Questionnaire-based surveys—a set of questions that can be addressed to either a representative sampling of the population or a group of volunteer participants.
  • Face-to-face meetings—including meetings with the public, specific groups (e.g., women, business leaders, farmers, youth), thematically organized sessions (e.g., sessions focused on a specific constitutional topic such as human rights or the judiciary), focus groups, and experts. Face-to-face meetings combined with civic education efforts are often the best way to reach marginalized groups and encourage them to participate.

Most public consultation processes will use a combination of these methods depending on the reasons for holding the public consultation. The sections on civic education and guiding principles for public consultation provide tips for preparing the public and organizing open, transparent, participatory, and inclusive public consultation. Part 2.2.4 describes how the views gathered by any method should be recorded, analyzed, and used.

Requests for submissions of people’s views

The constitution-making body usually announces a time period for the receipt of submissions, often through the media. Printed material or messages broadcast in various ways can explain the reasons for the interest in receiving views and give an indication of the kinds of issues about which views might be submitted. A suggested format for making submissions may also be provided. The efforts of the Uganda Constitutional Commission to encourage and assist people to submit their views included preparation and wide distribution of an 111-page book discussing in simple language all major constitutional issues on the agenda, a 23-page brochure containing 253 guiding questions intended to help people prepare written memoranda of views, and a brochure entitled “Guidelines on Submission of Memoranda on Constitutional Issues.” Over 60,000 copies of each were distributed. Posters explaining the constitution-making process and inviting the submission of views were also distributed.

Some constitution-makers have specifically invited submissions from experts, groups, or organizations whose ideas it wanted to hear. Publicity for the consultative process can sometimes result in strong lobbying campaigns being launched, including petitions with thousands of signatures, and card campaigns. The range of forms in which views can be submitted is vast, from one- or two-line notes to long and detailed draft constitutions.

Using the Internet, phone lines, texting, and social media to call for and receive views

Rapidly changing technology is allowing constitution-makers to call for submissions or comments on a draft or set of proposals using, at times, innovative and ever-changing methods. Constitution-makers need to be ready to adapt to new technologies.

Text-message services using mobile phones have been used to send comments to the constitution-making body. The Women’s Coalition of Zimbabwe launched a texting campaign to push the parliamentary constitution committee to redress gender imbalances in the constitution-making process. In Somalia, where severe security problems made it impossible to hold public consultation meetings, there was extensive use of SMS (mobile telephone text messages) to receive views on constitutional issues. South Africa used a phone line to receive views and questions about the process.

Websites as well as social media tools such as Facebook and Twitter are other methods that can allow constitution-makers potentially to reach large numbers of people, including those in diaspora communities, away from their home countries. (See box 23 for an example of how Iceland’s constitution makers are using social media to hold widespread public consultation on the content of the constitution and keep the public informed of the process.) The increased numbers of public submissions that may be generated can create much extra work for a constitution-making body serious about analyzing the views.

Box 18. Use of the Internet in Kosovo [2008]

Constitution-makers created a website (www.kosovoconstitution.info) that became a central meeting space for citizens interested in discussing constitutional issues and providing feedback. The website was interactive and citizens could read the constitution drafts as they were being produced, and share their views. The constitution was translated into Albanian, Serbian, English, Bosnian, Turkish, and Roma. The website had more than 2,700,000 hits (the population is approximately one million people) and views were requested through this site.

Use of guiding questions

Some constitution-making bodies develop guiding questions on constitutional issues that are distributed prior to a public consultation process. They have been used to focus attention on the key constitutional issues, promote debate and discussion, and suggest the manner in which written or oral submissions can be made to a constitution-making body.

To prepare questions reflecting the public’s concerns, the Constitution of Kenya Review Commission (Kenya [2005]) developed a list of guiding questions only after extensive public consultation with communities at the local level. The list of twenty-two constitutional issues or themes reflected the concerns of the public. The commission then created a “red book,” which posed 199 guiding questions. The commission’s regional offices helped distribute the red book to all of the communities, and three- to five-member panels of the commission then engaged in public consultation on substantive issues. The red book helped citizens organize their oral presentations as well as their written submissions. The Rwanda Legal and Constitutional Commission organized public meetings in each of its sixty-three districts, and discussions were guided by a sixty-item questionnaire distributed in advance. Similar efforts by the Uganda Constitutional Commission were discussed earlier in this section (under the heading “Requests for submissions of people’s views”).

Practical tips for guiding questions

Guiding questions:

  • can be developed based on prior public consultation about the concerns of the people or based on a predetermined reform agenda;
  • should be made public and distributed far enough in advance of the public consultation process to promote debate and discussion and help people think about the issues;
  • should avoid jargon and be kept to an easy, digestible length (testing in advance can help determine when a set of guiding questions is too complicated or lengthy);
  • should be realistic about the issues on which citizens can make a choice, since certain choices may not be an option either for political and historical reasons or because of international obligations;
  • should pose real choices and not simply lead people to a particular predetermined conclusion;
  • should not raise expectations about what the new constitutional order can deliver (for example, it is misleading to ask “Do you think that government ought to provide free secondary education?” when this is not an option); and
  • should be in all local languages; in societies with low literacy levels they can be shared orally in advance of public consultation.

Use of questionnaire-based surveys

Conducting a scientific questionnaire-based survey

A constitution-making body may wish to know the public’s view on a constitutional option; for example, whether a parliamentary or presidential system should be adopted. To obtain a representative data set for the views of the public as a whole, the constitution-makers would need to use a scientific method called a “probability sample.” The benefit of the scientific probability sample is that it gets information not just from those who volunteer but even from those who would not otherwise participate. Statisticians have shown that it is possible to get a good sense of the views of the entire population by questioning quite a small sample; a group of two thousand people is often used to represent the views of a whole country. However, when a probability sample is conducted, everyone in the population should have an equal chance to participate. For example, the endeavor could involve surveying a person in every hundredth household.

We are not aware of a constitution-making body that has conducted a questionnaire-based survey using a probability sample. Uganda rejected the idea of a scientific survey because the commission felt it was more important to use public consultation to engage the people and promote dialogue and debate than simply to distribute a questionnaire to a set number of people. The commission may also have felt that such a survey would pressure it to answer why its proposals did not align with the results of the survey.

A good probability survey could be used to provide constitution-makers with information about

whether their views are shared by the population as a whole. A survey in Nepal carried out by civil society actors showed wide differences in support for federalism between members of parliament (93 percent) and citizens (42 percent), and among castes and ethnic groups, regions, and education levels. It also showed differences in attitudes toward official languages and the continuation of the Hindu state.

This type of survey is unlikely to tell the constitution-makers why groups hold certain views, unless the survey is extremely well designed and probably conducted through interviews. A scientific survey may not be welcome because elite negotiations have foreclosed certain options, whether or not they are views held by the majority of the people. A scientific survey can potentially lead to an increase in tensions or mistrust among communities by highlighting stark differences at any one moment of the process.

A deliberative process should create a dynamic that will lead to changes in views and, ideally, a greater willingness to compromise to reach consensus. A probability survey that is conducted at a single moment may not accurately reflect the situation even a few days after it has been conducted if the context is volatile. In particular, in unstable contexts, events can change public perceptions and views, as well as the political environment, overnight.

If a scientific survey is to be held only once, it may be most useful to hold it after conducting civic education and after the draft constitution has been circulated to the public. In particular, if the draft is to go to a referendum, a survey can indicate to constitution-makers where there is strong disagreement with the draft and provide them with the opportunity either to explain the draft or to revise it so that the constitution will be accepted.

A scientific survey may not be possible. In postconflict countries in particular there is rarely accurate demographic data about how many households there are in the country and how many citizens there are in particular groups or communities. There may be millions of people displaced outside the country; violence may still be widespread, precluding certain populations from being surveyed. It simply may not be possible to get a representative sample of views.

A good probability survey requires contracting experts to guarantee a scientifically designed sample. Where there are large numbers of illiterate or semiliterate citizens, interviews may need to be conducted to ensure that the survey is inclusive. Questions should be tested in advance so that they are well understood by the respondents and do not guide or influence them to give particular responses.

It is important to understand the limitations of surveys. A telephone questionnaire (in which numbers are randomly selected to be called) may be unrepresentative if everyone does not have a phone. Busy professional people may decline to respond. Surveys are often conducted only in major cities, or in only one language. All such factors may skew results so that they fail to reflect the views of the people as a whole. All of these objections can be overcome, but only by increasing the costs involved.

Box 19. Pitfalls to avoid when using volunteer questionnaires: The case of Iraq [2005]

In Iraq, illiterate citizens were largely excluded from a survey because they could not fill out the questionnaires, even though there was no other way to get their views. There was also no civic education prior to distribution of the questionnaires or testing of their contents ahead of time. Educated elites in Iraq could understand the questionnaires, but few others could. Distribution of the questionnaires was heavily skewed toward Shia- populated areas of the country, and no special efforts were made to reach women. It has been estimated that upwards of a hundred thousand questionnaires were collected, with only a small percentage coming from the other two major groups (Kurds and Sunnis). Although the views were clearly not representative of the country as a whole, this mattered little because the views were given to the constitution-makers too late to be considered in the decision-making process (Morrow 2010).

Volunteer questionnaires

Questionnaire-based surveys have tended to target only respondents who were sufficiently interested to participate (e.g., in Afghanistan, Iraq, Kenya, Nepal, Papua New Guinea, Uganda, and Zimbabwe). Latin America seems to have no tradition of using volunteer questionnaires in a constitution-making process.

Although some constitution-making bodies have tried to disseminate questionnaires widely and have statistically analyzed the results of these volunteer questionnaires, the results could not provide an accurate representation of the views of the public as a whole. It cannot be claimed that 80 percent of a country’s people support a particular constitutional idea simply because 80 percent of voluntary respondents took that view. It is also possible that 60 percent of the people know nothing about the constitution or the process, or that they do not care. It is therefore unwise to use only this method to consult with the public.

Reports on surveys

Reports on the results of a survey should describe the methodology used and the number of people surveyed, and provide the questions that were asked along with the statistics gathered. If the statistics are not representative, this should be explained, along with information about how the views were used.

Reports of surveys should be scrutinized carefully. For example, it was reported in the press that a survey in Kenya on attitudes toward abortion had found that approximately 80 percent of the people were opposed to abortion. An electronic billboard displayed this “fact” to the public. A little later a member of the company that had carried out the survey explained in the press that it had also asked people whether they would favor abortion in a number of specific situations (e.g., rape), and the proportion left as opposing abortion under any circumstances was reduced to 18 percent.

Practical tips on surveys

  • Draft questions so that they are easily understood, and test them in advance for specific audiences.
  • Allow for written answers, make the survey short, and leave space for the respondents to include other issues.
  • Produce the questionnaire in all relevant languages.
  • Provide instructions on how to fill it out; explain the constitution-making process, the role of the questionnaire, how the views will be used, and what feedback will be provided.
  • Use a logical order and place important issues in the beginning. If security is not an issue, request relevant biographical information such as age, ethnicity, and region of country.
  • Explain whether the responses to the questionnaire will be made public (e.g., posted on the official website) and provide an option for respondents to remain anonymous.
  • Give the public at least two weeks to read and fill out the questionnaire. (Such a time requirement would not apply to a scientific survey questionnaire.)
  • Make it easy to return the questionnaire via the Internet, through the mail, in a drop-off box, at a designated office, or at a public consultation meeting.

Use of face-to-face public consultation meetings

This method has the potential to promote a more deliberative and open process and—perhaps most important—allows constitution-makers to hear views and concerns firsthand. We discuss four types of face-to-face public consultation:

  • public consultation meetings (open to any participants);
  • focus groups;
  • meetings with sectoral groups (e.g., women, business leaders, nomads, youth); and
  • thematic meetings (e.g., human rights, judiciary, land rights).

Regardless of the type of public consultation organized, in postconflict contexts or divided societies, the challenges faced will often involve ongoing violent conflict or potential for conflict, high illiteracy rates, and mistrust of official processes, as well as limited resources and poor communication channels or inadequate transportation. The following discussion outlines how past processes have organized these various kinds of meetings and also how they addressed some of these common obstacles.

Public consultation meetings

In highly participatory processes, public meetings have been held countrywide and also in places with large diaspora populations. Constitution-makers (most commonly constitutional commissioners) have invested in organizing hundreds of meetings and engaging tens of thousands of citizens (e.g., in Papua New Guinea [1975], Uganda [1995], South Africa [1996], Rwanda [2003], and Kenya [2005]). Members of elite groups in most countries normally have ways of channelling their views into the process to ensure that they are heard. That is why many constitution-makers have emphasized using the resources available for public consultation to reach the marginalized and disadvantaged, in order to empower them to have a voice, or to participate in dialogue directed toward reconciliation.

As noted above, guiding questions have sometimes been used to frame the discussion. Prior to a draft constitution being prepared, public meetings should be open to any topic, unless certain reforms have already been excluded (e.g., by the legal mandate for the process). Eritrea set aside a four-month period for extensive public meetings on a set of proposals that had been widely distributed. The meetings began with an introduction of the proposals and then provided a period for questions and answers as well as the sharing of views. The questions were recorded and analyzed according to biographical information. Some 175 meetings were held, which lasted about three hours each. Constitutional commissioners were often inspired by the wisdom of the views given. In some countries recovering from conflict and even from atrocities, there may first need to be some other public process that enables people to begin to talk openly about their experiences of those circumstances (some form of a “day of reckoning”). Otherwise, the first attempt at public consultation may yield views that are not aspirational but rather focused on the past.

A prerequisite for open public meetings is a secure environment. Recently in Zimbabwe in 2010 participants were attacked at public consultation meetings. (See part 2.3.10 for a discussion of security issues.) The meetings must also promote the free expression of views. As noted previously, separate meetings may sometimes be needed for some groups (e.g., for women or youth if they are unable to express their views in public).

In Uganda [1995] and Kenya [2005] the commission members assured the public that every concern or experience was a relevant constitutional issue. In other processes, constitution- makers failed to listen. In Timor-Leste [2002] some of the constitution-makers would comment that the views being expressed were not constitutional matters. This was primarily because these constitution-makers did not understand why it was important to listen to the views of the people to ensure the constitution, to the extent possible, reflected their concerns or aspirations and addressed serious problems. For example, in Kenya a large percentage of the population complained about lack of access to medicine. Commission research showed that this issue was related to the need for improved decentralization of healthcare, and this finding was reported back to the participants.

Views that seem “off-topic” should also be carefully recorded because of what may underlie the concerns or desires expressed. In Bougainville [2004], for example, men commonly complained about women wearing “six-pocket trousers.” (This was seen as involving women dressing like men, thereby ignoring what some leaders saw as major differences in culturally based social and other roles for men and women.) These concerns did not lead the constitutional committee to consider making the wearing of trousers by women an unconstitutional act, but rather to incorporate more comprehensive gender equality provisions into the constitution, in order to combat the discrimination against women they heard about during public consultation. In short, public consultation can help constitution-makers better understand the attitudes, beliefs, and aspirations of the people.

To help organize meetings in far-flung places, constitution-makers have set up district or regional offices (e.g., in Afghanistan [2004] and Kenya [2005]). In Afghanistan, offices were also set up in Pakistan and Iran to facilitate meetings with diaspora populations. In South Africa, secretariat staff members worked closely with local leaders and civil society to organize meetings. In Kenya, the commission visited all 242 constituencies and set up constitutional committees in each one. The membership consisted of ten persons, three of whom would be ex officio: the local member of parliament, the chair of the county council in which the constituency was located, and the district coordinator. Each committee was to be as representative of the people of the constituency as possible. It was recommended that a third of the committee members should be women. The commission also established district-level offices to facilitate public consultation.

The Constitutional (Reeves) Commission was asked to review the 1990 constitution. It conducted public consultation (South Africa [1996]), local leaders and civil society helped organize transportation for people to reach central locations for meetings. In Afghanistan [2004], people had to find their own way, and some traveled for days to reach the meetings. Providing food at meetings for people who had traveled long distances and had little income was sometimes necessary.

In Fiji [1997] public consultations were held on how to reform the constitution but without preparing the public through a program of civic education. Transcripts of the meetings indicate that few of the views were informed by an understanding of the 1990 constitution or of constitutionalism. A representative of the Women’s Advisory Forum stated, “We did not have access to a copy of the constitution. We asked the District Officer for a spare copy to be able to quote the section or provision that covers this issue but he did not have a copy.” (Le Roy 2010)

In postconflict or transitional contexts the state is typically viewed with mistrust. Constitution- makers may need to persuade people that their efforts are genuine. A woman in Fiji commented that “some of my uncles thought it [the public consultation meeting] was maybe just for chiefs you know, and the commoners would not have any say and it would be a waste of time to go down and listen because their voice would not be heard anyway.” (Le Roy 2010) Prior to South Africa’s massive awareness-raising campaign about the public consultation, most citizens also doubted whether their views would be seriously considered. Where such concerns are likely, the constitution-makers should explain how the process will take place and how the views will be gathered, recorded, and considered.

Several countries have made considerable efforts to provide feedback, which also enhances the credibility of the process and encourages others to participate. The example of Kenya [2005], where each constituency received a report of the public meeting held there and could make corrections to the record, has been noted above. Further, a later report by the Constitution of Kenya Review Commission explained how views were considered and incorporated. In many other countries, however, there were no efforts to provide feedback. In Colombia [1991], Ecuador [1998], Venezuela [1999], and Bolivia [2009], the views were passed to the constitutional commissions but no efforts were made to check with participants to see if their views had been accurately captured or to explain how they had been taken into account.

Focus groups

Focus groups involve group discussions that follow a set agenda and are led by a moderator. To be effective, the groups are kept small; they involve between six and ten people. The discussions and interactions among participants are designed to provide insight into the views of the participants, and the thoughts and feelings behind the views. The analysis of the outcomes is designed to help decisions-makers test their assumptions and take the views and concerns of the public into consideration when preparing the constitution. If the focus groups are about how to make the constitution, the attitudes expressed can help the constitution-makers improve the design of the process and ensure that concerns are addressed at an early stage.

Focus groups may have a better chance than polls or surveys of capturing the complexities of the constitutional debate and promoting rich discussions. However, as with questionnaires, focus groups can capture only a particular moment in the process. As a result, if such groups are to prove useful to the decision-makers, they may need to be held periodically because the public’s views can change during a process because of the public debate or other factors in a dynamic process.

Unlike probability surveys, focus groups are a qualitative research method. Because of the small number of views gathered (depending on the number of groups organized), they will not be statistically representative of the population as a whole. Organizations such as Interpeace and the National Democratic Institute have used this method to feed information to decision-makers in places such as Israel, Sudan, and Timor-Leste.

As far as we are aware, constitution-makers themselves have not used this type of approach (though in Somalia focus groups set up by the National Democratic Institute were part of a process coordinated by the United Nations because the constitutional commission could not set

up its own focus groups). The official process has typically underscored organizing larger meetings, and the moderators were not specifically trained to use discussion to get at deeper underlying concerns about constitutional issues. This may be because of the emphasis on getting large numbers of people to participate rather than exploring what smaller group discussions could yield in terms of research for the task at hand.

In deeply divided societies the focus group method may be a useful first step in understanding the views of the different groups before embarking on a more open process of civic education and debate that could refuel conflict if it did not first take into consideration the current dynamic in the country. For example, the focus groups could first be held with homogenous groups. This method might also be effective in insecure environments where open public meetings would be vulnerable to threats or attacks.

Meetings with sectoral groups

These meetings are held to get an understanding of the concerns and views of particular groups, such as business leaders, political parties, the media, nomads, women, and youth. These tend to be larger group public consultation meetings, but they can also be organized as focus groups. Certain views may not be voiced in open public meetings. For example, in Eritrea women rarely speak in the public meetings. In other contexts, youth may not feel comfortable speaking out with their elders present. Sectoral group meetings can help ensure that all voices are being heard and considered.

If local leaders heavily influence the views and opinions of communities, meetings with sectoral groups may help the constitution-makers understand how the process is viewed and what messages will be communicated from the leaders to the public. This may be especially so in clan-based societies. Working with key local or community leaders to organize broader public consultation meetings can yield greater credibility and public participation in the process.

In Afghanistan [2004], because of the lack of security in the country, no public meetings were organized. Rather, the meetings were by invitation only and focused on receiving the views of particular groups, including internally displaced persons and religious minorities. Similarly, in Puntland [2009], the commission identified a set group of stakeholders to provide input into the draft subnational constitution. It included:

  • governors, mayors, and officials from the ministries of the interior and local government;
  • civil society, umbrella organizations, and business leaders; and
  • traditional and religious leaders.

Prior to each forum, participants were provided with a copy of the draft revised constitution and requested to identify specific articles for discussion, amendment, or suppression; to note gaps; and to suggest improvements in the drafting language. Each forum opened with a presentation by the legal adviser on the general content of the draft and the process by which it had been drafted. The comments and input from participants were tabulated and recorded in a matrix that was later used by the commission to finalize the draft. The contributions tended to reflect the category to which the individuals belonged. Examples include increased autonomy from the central government, including access to revenue generated through natural resources; women’s rights; education; and political and economic empowerment.

In addition to organizing open public meetings throughout the country, South Africa’s constituent assembly organized “national sector public hearings.” In these forums, the members met with national stakeholder groups, such as women, business leaders, and religious organizations, to get their input on specific questions of interest to these groups. However, in Brazil [1988], the subcommittees of the constituent assembly organized hearings only for interest groups, including environmentalists, labour groups, indigenous peoples, and even maids. Political parties were poorly organized, and interest groups fought strongly to get their interests reflected in the constitution. Perhaps one of the weaknesses of the Brazilian process was that the constituent assembly members did not also travel throughout the country and hear the views of the public directly. This omission may have led to a process that was less deliberative and more of an aggregation of narrow and short-term interests.

Thematic meetings

In many of the Andean countries, such as Colombia [1991], Ecuador [1998], and Bolivia [2009], public consultation meetings were organized around thematic issues that mirrored the internal organization of the constituent assemblies. Indeed, they were often organized by thematic committees of the assemblies. The committees convened public gatherings to discuss specific topics, such as human rights or the judiciary. This was an efficient way of helping ensure that views on a specific subject were heard by those addressing that topic. However, if this is the only type of meeting held, public consultation may discourage the general public from attending because people may be less interested in giving views on how the judiciary should be structured, for example, than simply sharing more general concerns and aspirations. Civil society will tend to participate the most.

Practical tips for organizing all types of face-to-face meetings

  • Give advance notice of meetings through local leaders, the media, district offices, and other means.
  • If there are specific issues upon which views are sought, explain this and notify participants far enough in advance so that they will be able to prepare.
  • Ensure that all participants have advance copies of any public consultation documents (such as guiding questions) in all relevant languages and in a format that avoids legal jargon.
  • Train facilitators, in particular, how to address conflicts and to promote dialogue (especially where these are key objectives, as, for example, in a divided or postconflict society).
  • Try to ensure that constitution-makers, facilitators and other key official actors at the public consultation reflect a balance to the extent possible with regard to gender, age, race, and any other relevant diversity factor.
  • Record all necessary biographical information about the participants unless this information would lead to the intimidation of those sharing their views.
  • Introduce the agenda and all facilitators and speakers and explain the role of other staff members present, such as those recording the public consultation.
  • Explain the objectives of the public consultation, the time allotted to each speaker, how the meeting fits into the wider discussions held on the constitution, how public views will be gathered, recorded, and used, and how feedback will be provided.
  • Record all views carefully.
  • Provide time for questions and answers about the public consultation or for general debate and discussion.
  • Provide interpreters if necessary, including in sign language.

Using video to facilitate public consultation

Interpeace regularly uses video in its peacebuilding work, but to our knowledge this has not been used in a constitution-making process. Careful (and perhaps creative) use of video of various phases of consultative processes may have the following uses and benefits for a public consultation process:

  • It can be shared with all constitution-makers. One of the key benefits of a public consultation process is that those preparing the constitution get to see and hear firsthand the concerns of the people from different parts of the country, groups, and communities. But there is rarely enough time for members to travel to all areas of the country. Video footage can capture the essence of meetings in all areas and give members who were not in attendance the benefit of hearing a wider perspective. Or, if an external group is organizing meetings, it can film and edit the meetings to share with the official body.
  • It is a preparation tool for facilitators. In the testing phase, video footage can be used to reflect how focus groups or public meetings can be improved. It can also be used as a training tool to support the skill development of other facilitators.
  • It promotes dialogue among groups. Showing footage of a group or community discussing constitutional issues can stimulate discussion elsewhere. Where geographical, social, or political reasons may prevent different groups from communicating, showing videos of the conversations of one group to the other can create an experience of listening and possibly seeing the humanity of the other group. Depending on what is appropriate and possible at a given time, video footage of conversations within each group can gradually transform into “indirect dialogue.” Video documentaries can also facilitate the sharing of views of refugees and the members of the diaspora. Showing footage of others discussing constitutional issues, even sensitive ones, can also encourage groups to participate that may have viewed a constitution-making process as something only “elites” should do.
  • It brings “public opinion” to a sociopolitically elite audience—and vice versa. Urban elites who are not involved in public consultation may not have opportunities to listen to the views of disadvantaged, minority, or rural citizens. And where the media do not reach far or only disseminate “official” discourse, video footage of interviews and discussions of these different groups can be shared.
  • It keeps constitution-makers involved in the public consultation. If those preparing the constitution are not involved in the process of consulting the public, they may tend to ignore the results of the process. In Timor-Leste it was suggested that the constituent assembly leaders did not trust that reports of a public consultation process held in advance of the election of the assembly were accurate, or they were concerned that the reports had been manipulated. In such a situation, video footage could illustrate that the public views of different sections of society had been captured and transmitted accurately.
  • It documents the impact of dialogue. Video is the most powerful way to show the kinds of changes in attitudes, discourse, and interactions that constructive dialogue can help bring about. This can be used to show constitution-makers the direction of the constitutional discourse in communities. Video footage can be a monitoring and evaluation tool for the participatory process.
  • It creates a historical record of the constitution-making process. A new constitution is an important historical event in the life of a country. A record of the constitutional dialogue can be used in a constitutional museum (see part 2.3.7) or in other educational institutions.

There are, as always, also dilemmas and risks involved with using video. Filming can intimidate participants and perhaps silence those who might otherwise speak. It can also have the reverse effect and lead participants to speak at length and for the camera. It can pose a serious security risk for participants if intimidation or coercion is a problem in the process. Decisions may need to be made in advance about whether specific locations of meetings, as well as the names of speakers, should be provided.

If the benefits of video outweigh the risks, production and editing choices will need to be made. What kind of attention span does the anticipated audience have? Certain audiences have little time, and the key messages need to be gotten across quickly. Others will not only be willing but even eager to watch a longer film that provides a wider range and more in-depth perspectives. Films of different lengths could be made for different purposes. How will decisions be made about whose voices are portrayed?

Viewers may question whether the views presented are representative. If a film shows different groups of constitution-makers consulting the public, the constitution-makers themselves can agree that the captured public consultation session conveyed the essence of the discussions and views presented.

2.3.9 Translation and interpretation services

Especially in divided societies, language can be a highly politically sensitive issue as well as a logistical hurdle. Constitutional deliberations require clear communication among those involved. Tensions have arisen when documents as important as drafts of the constitution have been put forward in the dominant language and other members have waited for the documents to be translated into their language, or when the translations are so poor they cannot be understood. Other key challenges involve ensuring inclusive communications with the public. The process should reach all members of society. This takes careful planning and significant resources if more than one and sometimes even dozens of languages are spoken. Finally, communicating with foreign advisers and donors may require another set of translators and interpreters altogether.

Translation for nationals

In some countries there are people with a great deal of experience in translation, Neglect of certain communities in other countries may have been among the causes, or the consequences, of conflict. Linguistic chauvinism in Nepal on the part of the dominant caste groups was entrenched, and an element of the People’s Movement of 2006 was the demand for rights for all, including distinct language groups—symbolized by the members of the constituent assembly being able to take the oath in their own languages (of which there are perhaps a hundred in the country). But in other countries there may still be those whose attitudes are stuck in the past. In Somalia, for example, speakers of the dominant language, Af-Maxaa Tiri, will sometimes insist that Af-Maay (classified in Somalia as a version of Somali) is a dialect of Somali, although the two are largely mutually unintelligible, and the Af-Maay speakers have always felt marginalized, especially because official Somali orthography is based on Af-Maxaa Tiri.

Translation is both time-consuming and expensive, and common sense as well as sensitivity is required. It is not possible to translate materials into many languages, and there may be few literate members of some linguistic communities. While the actual text of a constitution ought to be available in major languages, few will read the text in any language, and leaflets making the main points in some other languages may be enough.Part 2: Tasks in a constitution-making process

All the problems of translation from foreign languages highlighted below may be more acute when there is a need to translate into languages that—along with the communities that speak them—have been somewhat neglected in the past, with the result that constitutional terms have never been developed in those languages. This raises the question of whether it is appropriate to invent new words, or use existing words in a new sense. Though this may be a long-term solution, it hardly helps comprehension in a popular-consultation exercise, which is often the reason for the translation. It may be necessary to insert an explanation rather than an obscure or invented word.

Translation for foreigners—and of foreign material for nationals

Unfortunately, in some processes there is no foreign member of a team who has a command of the constitutional and political terms needed in a given local language, and no local staff member who has that same degree of facility in the foreign language or languages. This means that there is no quality check on translations, which may actually be almost incomprehensible.

All too often the issue of translation is not addressed early enough. And the need to recruit translators quickly may lead to the recruitment of quite unsuitable individuals. Although most people realize that simultaneous interpretation is a highly skilled task, they may not realize that the skills needed for translation of technical documents are equally great, if different. In one process an international organization recruited as a translator a young man whom they met while he was working in a bar. His English was indeed excellent, but his knowledge of constitutional law was nonexistent. In Timor-Leste, the secretariat did not realize it needed interpreters until the constituent assembly held its first session and it became evident that the younger members could not follow debates in Portuguese. Interpreters were found, but some were poorly trained, and communications problems among the members existed throughout the process.

Box 26. Translating the language of constitutions

“Convention” has two quite different meanings, one referring (in only a few countries) to an established constitutional practice, and the other (more common) sometimes referring to a constitution-making assembly.

“Proportional representation” usually refers to an electoral system designed to ensure that the votes each party receives are reflected in the number of legislative seats it wins; the phrase is now used in Nepal to refer to the ethnic, religious, community, or caste representativeness of a body.

“Federalism” is a system of government under which power to make and administer laws, collect taxes, and the like is divided between the national government and governments at one or more lower levels—used by some purists to refer only to a country such as the United States, where preexisting units came together to form a new state.

“Penitentiary” means “prison” in the United States, but the word isn’t used in the English of many other jurisdictions, though people there would likely understand it.

Not only is the language of constitutions technical; it is also specific to countries. A camshaft may not vary in its nature from country to country, but legal terms are not necessarily understood in just the same way everywhere, and constitutional terms also have political overtones. While a person who has some knowledge of constitutional concepts in English and some knowledge of French and Latin might be able to translate a constitutional text from Spanish or Portuguese into English with a little help from a dictionary and an online translation program, there will inevitably be significant gaps in his or her understanding of what the terms would mean to a Spanish or Portuguese lawyer. This is a matter of constitutional knowledge as much as of translation; it points to the need to be careful not to make use of terms in any language without knowing what they mean. This serves as another reminder that foreign experts need adequate preparation and briefing. Only a dictionary focused on a particular discipline is likely to include many of the necessary words and phrases. A bilingual dictionary is unlikely to include phrases such as “parliamentary system” or “proportional representation.” This is true particularly because these are concepts, not just labels.

Some concepts have no exact equivalent in some languages. In Nepal the word “democracy” was translated in two ways, each version having political overtones. In Somali, “democracy” seems to be viewed as a foreign term, and there is no clear word for “federalism”; any word for it that does exist is essentially Arabic.

Practical tips

Both local and international actors should focus as soon as possible on whether translation is going to be a problem. Some of the strategies listed below may be helpful. But it must be emphasized that translation is a technical matter; ideally it should no more be carried out by an amateur than technical constitution drafting should be. The first strategy should be to locate the people with the necessary skills and knowledge:

  • Recruit a group of good translators and train them in the concepts and the language they will need; this will probably require a short course in constitutions. A well-run course in constitutional and political translation would be a useful contribution to the country’s future development.
  • Identify as soon as possible a good bilingual dictionary that focuses on the range of vocabulary likely to be used.
  • Prepare a glossary of words in the relevant local languages and the relevant foreign languages; this should not just be a dictionary, but should explain the use of the words, at least in the foreign languages. It is important to address the problem of words with no translation and agree on how to handle them. (This may have its risks; one writer observed that the English phrase “Lord Chancellor” was translated into Turkish as “Lordlar Kamarası Baskanı,” meaning the “head of the House of Lords” (Anthroscape n.d.). The Lord Chancellor still exists, but is no longer the head of the House of Lords!
  • Train the translators and interpreters in the use of the glossary, and insist that they use it.
  • Emphasize the importance of always using the same words for the same concepts, resisting any temptation to sacrifice accuracy for elegance. Resist also the urge to use “politically correct” terms if these were not used in the original—for example, it is not proper to use the word “gender” when translating into English instead of “sex” just because this is the United Nations’ favored word. This is particularly important when drafting a legal text as opposed to a piece of political analysis.
  • Obtain a bilingual version of the existing or most relevant previous constitution, especially if there is what is professionally thought to be a good translation, and insist that translators consult this when translating a new draft.
  • Try to persuade translators not to adopt dying usages in other languages; for example, modern drafters in English are moving away from “shall” to indicate obligation (a word that modern nonlawyers would read as a statement of what will happen in the future) and toward using “must” or some other clear word of obligation. However, when translating into the local language, it is perhaps not a good idea for international actors to try to “improve” local usages, though some education about the existence of alternatives might be permissible.
  • Establish cooperation among organizations so that only one translation needs to be prepared for each new document.
  • Explain the problem to foreign experts and insist that they do not use obscure words in their presentations and written documents—there is no point if the words, when translated, will be nonsensical.
  • Ask speakers in a foreign language to discuss their topics with the interpreters in advance, so that the latter can ask for guidance on meaning and be forewarned about possible difficulties.
  • Discourage foreign experts from asking for complex writings to be translated, thus taking up the valuable time of translators to produce something that is unlikely to be read.
  • Consider using a commercial translation agency; in Iraq it proved possible for documents to be sent to agencies in a different time zone and for translations of fairly short documents to be made overnight. This, however, has the obvious shortcoming that it bypasses local workers and does not contribute to the development of their skills—and quality control may be a problem.

2.2.4 Receiving and analyzing the people’s views

Whatever decision is made about the methods of consulting, the public views gathered should be handled in a transparent and accountable manner and be carefully considered. This requires careful planning. Constitution-makers are often surprised by the number of citizens who actively participate. Some public consultation processes generate a significant number of public submissions that can be either oral (recorded during face-to-face meetings or from special phone lines) or written and in the form of questionnaires, petitions, memoranda, or draft constitutions. With the recent option of sending comments via the Internet or by texting, the number of submissions could run into the hundreds of thousands.

Written submissions may be a paragraph or hundreds of pages long. Many processes have received thousands of written and oral submissions and tens of thousands of questionnaires. In Afghanistan [2004], the combined public input was over a hundred thousand submissions. To ensure that the endeavor is a genuine effort to consult the public, the constitution-making body should be well prepared to record, collate, analyze, summarize, and report on the results of public consultation.

Making use of these views is a major task. In this section, we begin with a brief discussion of the experience of constitution-making processes that have made major efforts to receive the views of the people. In doing so we discuss why even some processes that make efforts to collect people’s views may do little to analyze those views or to make use of them in decisions about the new constitution. Drawing on the experience of processes where the people’s views have been analyzed and used in decision-making, we then discuss:

  • how the different purposes for which the views of the people are received and used by constitution-makers can affect the work involved in receiving and analyzing views;
  • a range of more general issues concerning how constitution-making bodies organize the work involved in receiving and processing views; and
  • the reports that constitution-making bodies make about their use of the people’s views.

Experiences of processes in which the people’s views have been received

Extensive use by constitution-making bodies of the people’s views in making decisions on constitutional arrangements is a relatively new development. Until the 1960s and 1970s, constitution-making tended to be regarded as a matter mainly for political leaders and experts on constitutional issues. There has been a significant change in the past thirty to forty years, in part based on broadening concepts of the people’s right to participate.

Nevertheless, while in recent years the people have often been consulted, the number of cases in which the views received have been carefully analyzed and used in making decisions about the new constitution has been limited. One of the first of these was Papua New Guinea [1975]. Others have included Uganda [1995], Eritrea [1997], Albania [1998], Bougainville [2004], Kenya [2005; 2010], and Nauru [2010].

The processes in which the greatest efforts are made to consult the people and receive and analyze their views tend to be in countries with large rural populations, and where there are not well-established ways in which the people’s views can readily be aggregated by broadly representative bodies. In many countries (especially those classified as relatively “well developed”) there are long-established ways in which the people’s views on controversial issues tend to be aggregated by bodies seen as legitimately representing the main strands of public opinion. They may include political parties, trade unions, and major NGOs. When constitution- making processes occur in such countries, representative bodies and the general public may all tend to assume that established patterns of aggregating views will be followed. As a result, there are less likely to be major consultative efforts where views are collected and analyzed, and instead more likely to be a limited public consultation process, in some cases one that mainly engages with a few categories of major organizations.

In addition, there are many processes where there is little or no focus on people’s views as a source for decisions. This may be because constitution-making is a negotiated process, as is often the case in postconflict situations where parties to a peace process negotiate a settlement that includes constitutional change. In still other cases, it is assumed that the people’s representatives, such as members of parliament, of a constituent assembly, or of a national conference already have a mandate to express the views of those who elected them (or whose interests they were nominated to represent, as with appointed members of a constituent assembly or national conference), so there is no further public consultation required.

Box 20. How South Africa’s two million submissions were counted

In South Africa [1996], it is sometimes claimed that more than two million submissions were received. Most were signatures on petitions (mainly on specific issues); there were only about thirteen thousand substantive submissions. However, even though these submissions were analyzed and reports about them were provided to technical committees of the constituent assembly, for the most part they had a limited impact on decisions about the constitution, largely because the primary outcomes were negotiated among the major political parties.

Box 21. Use of views in Papua New Guinea [1975]

Although extensive use was made of the many views collected, and the recommendations of the pre-independence Constitutional Planning Committee are regarded as being based heavily on the views of the people, twenty years later one member of the committee said, “in the end we abandoned the idea of analyzing all the submissions that came in, because there were just too many. And there was also, to a certain degree, a position taken . . . that we represented the people and that in some ways the people had to be led and not be followed” (Mackenzie Daugi, member of the Papua New Guinea Constitutional Planning Committee, in Regan, Jessup and Kwa 2001: 361–62).

What perhaps might at first seem odd is that in a number of constitution-making processes, while considerable efforts were made to collect people’s views, those views subsequently receive little attention from the constitution-makers. In Rwanda [2003] only 7 percent of the responses to fifty thousand lengthy questionnaires provided to the people by the constitutional commission were analyzed. In Iraq [2005] the questionnaires that had been distributed and gathered were never looked at by the constitution-makers.

Reasons why views are not analyzed may include:

  • a failure to make a plan or budget to effectively analyze and use the views;
  • the view held by primarily elected constitution-makers that they represent the people and so should be free to make decisions based on what they think is best.
  • the effort and extensive resources required if large numbers of written and other submissions are to be received and analyzed, and the extreme time pressures that are often experienced in constitution-making processes;
  • constitution-makers who participate in numerous face-to-face meetings with the public feeling that they are capable of making their own assessments of what they have heard, and do not need further analysis of transcriptions of what was said at such meetings or of what they may feel is similar material contained in written submissions;
  • people often being consulted about their views for purposes other than to inform the constitution-makers, including:
    • raising awareness about constitutional issues (almost a form of civic education);
    • attempting to legitimize the process;
    • responding to expectations of or pressures from civil society, the media, or the international community; and
  • the pressures on constitution-makers to ignore, or downplay, the views of the people on particular issues, as, for example, in South Africa, where strong popular pressures for constitutional provisions in support of capital punishment and in favor of prohibitions on abortion were ignored because of the concern of the African National Congress (and others) to ensure that the new constitution contained progressive protections for human rights.

The views of the people are never the only source the constitution-making body is permitted to use. (See part 2.2.3.) While the people’s views may be important, the use of other sources necessarily results in constitution-makers allocating their research and analysis efforts in other directions. That can result in the development of views on constitutional issues that are different from, and even contrary to, those that predominate in the views submitted by the people.

Effects of public consultation choices for receiving and analyzing the people’s views

A constitution-making body may want to receive and analyze the views of the people for a range of quite different purposes. Such purposes can have major effects on the type and the timing of the work involved, and staff and resources needed to do that work.

An initial round of public consultation about the people’s views may be held to help the constitution-making body determine the agenda of issues to be addressed as part of the process. In such cases a subsequent and usually much broader public consultation process will usually take place concerning that agenda. Quite apart from the task of organizing the public consultation, the receipt and analysis of views required people to record the meetings, transcribe the views presented, and summarize those views into reports the commission used in making decisions on the agenda of constitutional issues.

The most common purposes for obtaining views, however, usually concern developing proposals on the new constitution. This can be done in the many ways outlined in the earlier discussion of public consultation, and may require attention to the organization and resource issues outlined in the general discussion of requirements for receiving and processing views.

If, however, people’s views are sought in relation to a draft constitution, additional organizational and resource issues will arise. There will be a need to print copies of the draft, or at least to prepare adequate explanatory materials (i.e., providing enough information to the people to enable them to be meaningfully consulted). There may be a need to have the draft constitution and explanatory material translated into local languages. It may also be necessary to have a specifically designed civic education program to help people understand the content of the draft constitution sufficiently to be able to provide meaningful comments.

One purpose of analyzing views is to provide the constitution-makers with insights into the extent to which views differ between regions of a country, or among ethnic or religious communities within a country. An understanding of such variations may be of great significance in the process of making recommendations on constitutional issues, especially in a postconflict situation. To ensure that such an analysis is possible, it will usually be necessary to organize the consultative process in such a way that the views of the distinct communities are separated as they are received, or so they can readily be separated and subjected to later analysis. (The 210 separate constituency reports in Kenya are an example of what can be done.)

A further reason for receiving and analyzing views may be to assist the constitution-making body in the resolution of contentious issues. In Uganda, a careful statistical analysis of views submitted to the constitutional commission on divisive issues was one of several sources the commission used to make decisions on the limited number of issues where a broad consensus had not yet emerged after a highly consultative process taking more than three years. As outlined below, the commission needed a specialist staff and significant resources to undertake the analysis of the views on those issues contained in the 25,547 written submissions it received. The commission also published the results of the statistical analysis, as a means of reducing any suspicion that the statistical analysis had not been conducted in a bona fide manner.

Requirements for receiving and processing views

The following discussion provides a brief overview of some of the issues that arise when receiving and analyzing the views of the people.

Who collects and analyzes the views

While most commonly this work is done by the constitution-making body or its administrative management body (e.g., its secretariat), there can be major difficulties involved in doing this. Putting together the personnel and resources required can be a major exercise, one that it is hard for the constitution-making body to do on its own and in the limited time likely to be available. So, in some processes, either existing governmental or nongovernmental bodies undertake the work on behalf of the constitution-making body, or a special body is established for that purpose.

In Papua New Guinea, the colonial government’s political education office (later called the department of information) was put at the disposal of the constitutional planning committee. It designed the public consultation program and conducted the training of advisers for discussion groups established all over the country, through which much of the public consultation took place. Those advisers then took responsibility for transmitting to the committee the answers given by the discussion groups to guiding questions contained in six discussion papers circulated by the committee. In Colombia, a government commission organized almost sixteen thousand working groups throughout the country to gather public views. It worked for the three months before the constituent assembly met. It then organized the written submissions for use by the constituent assembly. In Albania [1998], a newly established ministry of institutional reform and relations with parliament was established to support the constitution-making body (a committee of the parliament). The ministry assisted in establishing a quasi nongovernmental body to facilitate public participation and the processing of views. It was funded mainly by donors.

In the more common situation where the constitution-making body itself takes responsibility for coordinating public consultation and the receipt and analysis of views that it generates, especially ones that continue for several years, constitution-making bodies do build up their own workforces, including specialist employees. An example of the personnel required concerns the Uganda Constitutional Commission, which took on the work of receiving and analyzing the memoranda, reports, and oral submissions containing the Ugandan people’s views. This was a major exercise. All submissions were summarized for general use by the commission. In addition, the views expressed in all submissions were examined to identify positions expressed on a number of controversial issues. Those views were analyzed statistically in order to help the commission make its decisions on the controversial issues. The commission’s workforce, which already had almost a hundred personnel, many working on summarizing and managing written submissions, was expanded by the employment of forty-eight university graduates and other staff members, including computer specialists.

The various forms in which views may be provided, and receiving and storing the views

People may provide their views to constitution-makers in a wide range of ways, including:

  • oral submissions at public meetings and in some processes over dedicated telephone lines (as in South Africa);
  • answers to questionnaires or to guiding questions circulated by the constitution-making body, which might be in writing or could perhaps be submitted online;
  • written or printed submissions on issues of particular concern to the authors, which can include brief notes, letters, long and detailed submissions, draft constitutions, and the like; and
  • petitions on particular issues, in some cases signed by hundreds of thousands of people.

With increasing access to electronic forms of communication, the ways views can be submitted is increasing, including:

  • text messages sent through mobile telephone networks;
  • e-mails;
  • blogs;
  • submissions made on dedicated websites; and
  • Twitter and Facebook.

A constitution-making body that is serious about receiving and analyzing views needs to give careful attention to the arrangements it makes for managing these views in ways that ensure that the material is accessible to and readily available for analysis by the constitution-making body.

For management of large volumes of views submitted electronically, it will be essential for a constitution-making body to employ a specialist staff capable of setting up systems for recording receipt of such submissions, and electronic storage and backup. Such arrangements will need to make the material readily accessible to the constitution-makers and their staff, and also available for such statistical and other kinds of analysis as the constitution-makers require. Special arrangements may be needed if there is substantial use of video technology to record views. Where large numbers of oral and written or printed submissions are generated, arrangements will be required just to ensure that all such material reaches the constitution-making body. In a large country where much of the population lives in far-flung and relatively inaccessible areas, literacy levels are low, and many local languages are spoken, systems for receiving views may need to include arrangements for:

  • recording what is said at face-to-face meetings; and
  • encouraging submission of views in written or printed form, and then collecting the submissions and getting them to the constitution-making body.

Box 22. Use of social media to prepare a constitution: The case of Iceland [ongoing process]

The Icelandic Constitutional Council has established a website (http://stjornlagarad.is/english/) with links to Facebook (http://www.facebook.com/Stjornlagaradand), YouTube, and Flickr. The council views this as an effective way to engage a large percentage of the public becauase at least 90 percent of Icelandic citizens have access to the Internet, and most have Facebook pages. The public is invited through media advertisements, the Web, and social media to send messages using Twitter, Facebook, or the website. All of the messages are posted as long as the sender provides his or her name and the message is cleared by the council’s staff. Others can comment on the views expressed, which has been promoting debate on the issues. Every day the council posts short interviews with council members on YouTube and Facebook. Every Thursday, the council meetings are broadcast live both on the council’s website and on Facebook. The website also includes the current constitution, drafts of the constitution and other key documents, a schedule of meetings and events, the council’s procedures, names of council members, a newsletter, and the like. The country is relatively small, so this may be manageable. Such an experiment might prove more challenging in a larger country. The use of social media to prepare a constitution is a new approach (other countries, such as Ghana, have used social media tools as well but not as extensively) and should be studied to determine how it can be most effective.

In Kenya, the Constitution of Kenya Review Commission established documentation centers in all administrative districts not only to facilitate distribution of civic education material produced by the commission but also to act as depositories for submissions. In other places, government and administrative staffs have collected submissions from the public and forwarded them to the constitution-making body.

After the views have been received, the need for the material to be stored and managed in ways that ensure accessibility to the constitution-makers and availability for statistical or other forms of analysis gives rise to a number of major considerations, including:

  • Filing and storage systems will be needed for both electronic and documentary submissions. Consideration will need to be given to whether written or printed submissions are saved online (to make them more readily retrievable) and about where and how the originals will be stored.
  • Oral submissions may need to be transcribed, to make them available for reading by members of the constitution-making body, and perhaps for inclusion in statistical analyses of views submitted.
  • Both oral and written or printed submissions may need to be translated from local languages into languages that enable the views to be read and (if necessary) analyzed statistically.
  • In some processes, constitution-making bodies have put great effort into summarizing submissions so as to make them more readily accessible to both perusal by the constitution- makers and statistical analysis.
  • Constitution-making bodies need to consider how best to address the concerns, often expressed by people when consulted, that their views will not be used, or may be manipulated (e.g., to meet the interests of a political party). Sometimes such concerns are answered by producing reports of the views received. It might also be possible to make the views received available on a website, accessible to all who are interested.

For a more detailed discussion of issues about the records that may need to be kept by a constitution-making body, inclusive of records of submissions of views, see part 2.3.8.

Analysis of the views

A credible public consultation process requires analysis of the views. In particular in cases where large numbers of submissions (oral, written, printed, or electronic) are received, if only because it is usually impossible for members of the constitution-making body to read every submission. Apart from an analysis that essentially summarizes or identifies main themes expressed by the participants, various other forms of analysis may be required. These can depend on the terms of the legal mandate of the constitution-making body, and also on which of the various purposes for which views are received and analyzed are applicable in the particular case.

Most commonly, there is no special purpose beyond making the views readily available for use by the constitution-making body when it makes its decisions on constitutional issues. But to do that it may be important to have the views available in a range of forms. These might include analyses of views on particular issues, along with their main variants; analyses of views from different regions; or statistical analyses of options for responding to certain issues. There is no clear pattern here in terms of the tasks involved or in the way such tasks should be carried out.

For answers to questionnaires or to guiding questions that have been closely followed in submissions, a statistical analysis may be reasonably straightforward. But where submissions containing views are more open-ended, various technical issues may arise. For example, should a submission from a large political party, church body, NGO, or trade union be given the same statistical value as a submission from an individual? When statistical analysis is undertaken to

help resolve divisive issues, usually the analysis aims to identify the number or percentage of views submitted that support each particular option. As was the case with the Uganda Constitutional Commission in 1992, this may require analysts to examine each submission to identify whether the submission takes a position on any divisive issue being analyzed, and what that position is. Determining such issues can involve matters of judgment.

Wherever summary or further analysis of views is required, there is the potential that the public will be concerned about manipulation of the analysis. The sensitivity can be especially high when statistical analysis is used as part of an effort to handle divisive issues. In all such cases it may be vital to establish procedures to protect the data from manipulation. To this end, the Uganda Constitutional Commission used several levels of review for all data entry in its statistical analysis exercise. Constitution-making bodies can help build confidence in their analyses by being as open and transparent as possible about:

  • their decision to undertake statistical analysis;
  • the method of analysis being used;
  • their efforts to ensure that there is no manipulation of data or results; and
  • the results of the analysis, ideally through publication of reports on the outcomes.

Examples of processes for which reports focusing on analyses of views were published include Uganda (where a report of the results of statistical analyses of views expressed on divisive issues was included in the three-volume report published by the constitutional commission) and Kenya [2005], where the Constitution of Kenya Review Commission published a number of reports on its analysis of people’s views, including separate reports on views expressed in submissions from each of Kenya’s 210 electoral constituencies.

Staff, resources, and funds

Whether the views of the people are received, managed, and analyzed by the constitution- making body or by another agency, a large-scale public consultation process that results in many submissions will usually bring with it the need for specialist personnel, technical equipment, and funds. Personnel needs could include record keepers, data-entry personnel (physical and digital), computer specialists capable of developing software, managing digital record keeping and statistical analysis, and people to transcribe oral submissions, translate oral and written submissions, and persons who can summarize and analyze submissions.

Equipment required may include filing cabinets (or other pieces for storing original documents), equipment for transcribing recorded oral submissions, and scanners and computer software and hardware for storing and analyzing written and printed submissions. In Zimbabwe [ongoing process] those managing the process had to develop a system of locking away or securing the original submissions so that none of the political parties could later claim the submissions had been tampered with.

Serious allocations will be required, not just of staff members, resources and funds but of also time. This commitment will exceed what was needed for civic education and public consultation. A serious effort to collect and analyze views will be almost impossible unless adequate provision for such an effort is made in the work program of the constitution-making body from an early stage.

Reports of constitution-making bodies on use of the people’s views

Some constitution-making bodies, notably constitutional commissions and committees of parliament, prepare and publish reports of their work. (Other constitution-making bodies such as constituent assemblies, parliaments, and constitutional conferences do not in general issue reports on constitution-making, though verbatim reports of the debates of such bodies are often published.) Reports of constitutional commissions and the like are usually intended to explain the reasons for their recommendations on constitutional issues. As such, they are usually directed mainly to the constituent assembly or parliament that will debate the draft constitution prepared by the commission or committee.

An additional and often important purpose of such reports is to be transparent and inform the public about the analysis of the views of the people, and to explain how those views were taken into account (or discounted or ignored) in making decisions on constitutional issues.

Because they are directed at persuading constituent assemblies and parliaments of the value of the proposals for the draft constitution that they explain, such reports often are long and detailed. The volume of the 1974 report of the Papua New Guinea Constitutional Planning Committee containing the narrative and recommendations was 348 pages, while the 2004 report of the Bougainville Constitutional Commission was 368 pages. The 1996 report of the Fiji Constitution Review Commission was 791 pages. The Uganda Constitutional Commission’s final report consisted of three separate volumes:

  • a 144-page draft constitution;
  • a 921-page volume, Analysis and Recommendations, explaining the reasons for the decisions on which the draft constitution was based; and
  • a 383-page Index of Sources of People’s Views, listing all written submissions received and reports of public seminars conducted by the commission, and containing tables summarizing the statistical analysis used by the commission to help it make decisions on several divisive issues.

While such lengthy reports may be read by some in the constituent assembly or the parliament, their length and detail usually make them inaccessible to most ordinary citizens.

An alternative approach, used by the Constitution of Kenya Review Commission, was to publish not only reports giving feedback on views received in each constituency, but also a short version of the major report addressing the constitutional recommendations of the commission. The short report was specifically intended to overcome the common problems of accessibility encountered with long and detailed reports.

The roles of such reports are in some cases made more significant by provisions in a new constitution requiring courts interpreting that constitution to make reference to key documents relevant to the original intention of its provisions. In the constitutions of Papua New Guinea and of the Autonomous Region of Bougainville, such provisions extend the reports of the respective constitutional commissions. In that way, to the extent to which the reports analyze and rely upon the views of the people (and in both cases they do to a considerable degree), those views remain relevant to the ongoing interpretation of the constitution.

2.1 Tasks—starting a process

The tasks grouped in this part are all performed early in a constitution-making process, and are mostly concerned with questions of design or interim arrangements. Almost all involve issues about how to carry out a constitution-making or review process, or how to handle the transition period until there is a new constitution.

We begin, however, with the logical first task: “Do we need a new constitution?” That requires some consideration of where the country is now, in constitutional terms.

2.3 Administering and managing the process and its resources

Participatory constitution-making processes can require the planning for, coordination of, and implementation of hundreds of complex and politically sensitive tasks, and the management of hundreds of people over an extended period. In a postconflict environment these tasks can become formidable. Infrastructure may be scarce or seriously damaged, human resources diminished by warfare or exile, and mistrust rife between communities and leaders. Managers have had to overcome these constraints and many others to raise funds, refurbish buildings, hire and train large numbers of personnel at short notice, fly in photocopiers and computers and vast quantities of paper, accommodate the media of many countries, pay staff members and send money to field offices with no functioning banking system, secure the process, and handle members of the international community who want to influence the process, as well as slow- moving or corrupt bureaucracies. Administrators and managers have accomplished this and more with little time for advance planning.

The administrative and management requirements of a constitution-making process are often not well understood by the designers of the process. In this section, we alert our readers to the administrative and management tasks that are unique or critical to constitution-making. The tasks discussed in this section do not involve policy decisions taken by the political leaders of the constitution-making body. These are primarily the tasks that are carried out in support of the constitution-making body. A closely related discussion about the bodies that perform these tasks and how those bodies are structured and managed can be found in part 3. In particular, part 3.3 deals with the administrative management body that may be responsible for many of the tasks described below.

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.)

2.1.1 The constitutional starting point

A country that is contemplating a constitution-making process may:

  • currently have no constitution at all;
  • have no acceptable constitution;
  • have a functioning constitution, but one that is expected to be replaced by a new constitution; or
  • contemplate only amendment of an existing document.

Having no constitution at all is a rare situation, but it can occur if a new country is carved out of an existing one, or if a number of existing countries decide to form a new, perhaps federal, state. Much more common is the situation in which conflict or radical political change has made the existing constitution unacceptable. Usually it is the institutions, the distribution of power, and the access to resources that are unacceptable, but sometimes even the existing document cannot be tolerated—perhaps because of who made it—even if the new institutions may not differ much from the old. Sometimes the existing situation is so unworkable or so unacceptable that constitution-making has to take place in two stages: first, an interim constitution is prepared; then, through processes established by the interim constitution, the final constitution is created.

The following examples indicate the variety of starting points and incentives that have affected constitution-making processes:

  • Timor-Leste—was a totally new country carved out of Indonesia; for a while it operated on the basis of United Nations regulations, but it needed a constitution.
  • South Africa—had a fully functioning constitution, but it was based on a racist rejection of any rights for the majority of the population; an interim constitution was adopted as the result of negotiations between the old regime and representatives of the majority. This was passed into law through the processes of the old constitution, and under its processes the final constitution was prepared.
  • Afghanistan—had been controlled by the Taliban, who ruled in compliance with their view of Sharia (though they did say they used an existing constitution with its un-Islamic elements removed). After the Taliban were driven from power, the only constitution that seemed acceptable to the United States and the transitional Afghan leaders was that of 1964; shorn of its royalist elements, it was adopted as the interim constitution.
  • Switzerland—had a constitution dating from 1874 that had been amended 140 times. Changing it was challenging, but it no longer reflected many accepted principles, including human rights; it was decided that a new document was needed.

2.3.1 The core tasks of administering and managing a process

The administrative tasks of a constitution-making process may be broadly outlined in the legal framework, but the process will often entail far more tasks, such as:

  • strategic planning;
  • financial matters, including budgeting, fiscal record keeping, auditing, fundraising, and donor relations;
  • personnel issues, including recruitment and management;
  • logistics, including bringing people from far away for meetings and arranging accommodations;
  • procurement of transportation, equipment, supplies, and services;
  • security, including making policies and procedures and implementing them;
  • refurbishing or securing buildings and maintaining equipment;
  • conference management and catering (possibly for five hundred or more people);
  • translation and interpretation services;
  • information and communications technology, including setting up networks and database systems as well as repairing computers;
  • capacity development and orientation for personnel and constitution-makers;
  • research, drafting of constitutional provisions, archiving, and record keeping;
  • secretarial tasks, including note taking, minute taking, and distributing agendas;
  • printing and publishing books, pamphlets, questionnaires, or leaflets; and
  • public outreach, including civic education and public consultation.

A wide range of expertise will be needed to carry out such diverse tasks, each of which will involve many more specific activities. Here is a glimpse of the variety of possible tasks:

  • organizing a pop concert, song contest, or soccer game as part of a civic education and youth outreach program;
  • translating the draft constitution into several languages and printing millions of copies of it prior to public consultation;
  • hiring tents to serve as meeting rooms for a large constituent assembly or constitutional convention;
  • designing security passes to indicate who has access to which parts of the constitution-making grounds and meeting rooms;
  • arranging for daily tea service and meals for up to a thousand people for a national convention; and
  • designing the logo and official stationery for the constitution-making body.

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.