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.

2.1.10 Starting over when a process has “failed”

Failure—in the sense of not leading to a new constitution—seems to be the fate of perhaps half of all constitution-making processes in the world. Failure—in the sense of not producing a workable constitution—probably occurs in another significant proportion. And in others the process may be a failure in the eyes of some because it did not produce the constitution that they wanted. But a process that has not led to a new constitution is not necessarily a failed process. Much may have been achieved—even a realization that the country can live with its current constitution.

Beyond these rather general statements, we note elsewhere (see part 2.3.14) that failure may occur for different reasons, in different ways, and at different stages. Here we explore some of the factors, and the strategies, that may be relevant when deciding whether or how to try to remedy a “failure.”

An important warning: things are never the same at two different points in a country’s history. The people involved will have changed. The state of politics, peace and security issues, and the economy will affect the attitude of the people toward the need for a new constitution. It is likely to be particularly important who is in power. Sometimes pressure for a new constitution is really pressure to get rid of a certain ruler or a certain generation of politicians. When this is done, there may be, at least for a while, much less concern with constitutional change. And if the new rulers are the people who used to press for constitutional change, they may have discovered a fresh enthusiasm for the once-despised constitution—now that it has put them, and maintains them, in power. Finally, the earlier, even if “failed,” process will have had an impact: it will have shaped what people know about constitutions, and their hopes and expectations. They may be less interested in participating because of cynicism flowing from the failure; they may be more knowledgeable—or think they are more knowledgeable; they may be even more desperate for and committed to change; they may be so keen to have change that they overlook flaws in the proposed new constitution.

Back to square one

After a significant lapse of time, the failure of a process may be largely irrelevant—and the issues for those who have an interest in moving, or an obligation to move, toward a new constitution are essentially the same as if the country were starting constitution-making from scratch.

Even if the lapse of time is not so great, a country may decide that the best lesson from the past is to try completely afresh—either by the same sort of process or by a different process. In other words, no effort is made to salvage anything of the failed process.

Giving up

At the opposite end of the spectrum would be a decision to abandon the effort to change the constitution. Assuming that the country is not abandoning the aspiration of constitutionalism, the option would be to try to make the existing constitution work. As noted in part 2.1.2, this may well be a sensible option in many cases. No constitution is ever fully implemented, and the history of many countries would have been quite different if the government and the people had tried seriously to make what they had (in constitutional terms) work. Deciding to give up the search is unlikely to quiet demands for a new constitution unless the people have been involved in the decision or at least have acquiesced in it, and a serious and visible effort is made to use the institutions that the existing constitution presents.

What about the “no constitution” countries?

A particularly difficult variant of this situation will face a country that “does not have a constitution.” In reality, there are virtually no countries like this. Even a new country such as Timor-Leste could have adopted a set of institutions based on the constitution of Indonesia. There are people who would suggest that Somalia is putting its priorities in the wrong order by trying to proceed with constitution-making when even the extent of the government’s control over the capital city is contested. Either that country could build on local institutions and gradually build up a state, or it could use one of the earlier constitutions (or make its interim charter more permanent). The last course—relying for an extended time on an interim constitution—has been used in various countries, including Nepal and Sudan.

Gradual change

Another possible response is to give up the idea of a formal process of constitutional revision and to try to change the existing document incrementally, in the hope that over a period of time the country might be able to move toward a document that works and is legitimate in the eyes of the people. The Israeli parliament adopted a series of laws that laid down the constitutional framework, anticipating that this would ultimately lead to a unified constitution.

There are questions about such processes: is the result coherent? Is the process transparent and participatory? And some existing constitutions make change so difficult as to be impossible.

Starting from where you left off

Other countries have tried to retain what are seen as the gains of the “failed” process while moving ahead to translate them into a new constitution.

Lessons from the Kenyan process—which are likely to be true of other countries, too—include:

  • old, contentious issues that are of concern to politicians (mainly about power) have not been resolved, and they threaten the new process as they did the old;
  • agreeing on what issues are “contentious” is hard, because additional issues constantly emerge;
  • errors of design that were made in the previous process, including some deliberately created to defeat the old process, remain to affect the new; and
  • people, including members of the press, have remarkably short memories about the details of the constitution (hailing as “new” provisions that have appeared in several drafts).

Box 8. Options for “starting over” in Kenya

This has been the approach taken by Kenya since the rejection of the government- mutilated draft in a referendum in 2005. Various suggestions were considered for restarting the process. These included different combinations of a constituent assembly, a panel of constitutional experts, and a referendum (the last being required by a court decision); or a multisectoral forum plus a committee of experts and a referendum; or electing the next parliament to act also as a constituent assembly; or an interim constitution, a constituent assembly, and a referendum; or abandoning the attempt to produce a whole new constitution. Eventually a committee of “experts”—six local and three foreign—was mandated to prepare a draft drawing on the various phases of the failed process. (See the case study on Kenya, appendix A.7.)

The “political will” question

The mechanics of restarting are one thing; generating the will to start again is another. It is important to understand why a first process failed, to rekindle interest and recapture momentum if a major review process is to work the second time around. In Kenya an agreement effectively forced on the country by the international community after an outbreak of ethnic violence compelled fresh movement on the constitution.

On not rushing to change the new document

Some people will not be satisfied with the new constitution; some will have lost some aspect of the argument, and others will have lost power. And some people who were spoilers during the process will continue to raise points (which are not necessarily their real objections to the new document). Once a country has a new constitution, it should, ideally, move on. Implementation will itself be a big task, and continued debate about the contents will only hold up implementation. There is a risk that constitutional amendment will replace the old constitution-making debate. Clearly, essential amendments—such as if some provision turns out to be quite unworkable—ought to be made, but in principle the effort in the first years of a constitution’s existence should be toward making it work as it was drafted.

Box 9. Who should participate—and how? (Sometimes known as “actor mapping”)

When a constitution-making process is begun, it is important to identify all the sections of society that need to be involved—to create a sort of picture of society, with all its divisions and institutions, to ensure that the constitution-making is a truly national event and everyone has a voice.

Certain groups often dominate—including, in postconflict societies, the parties to the conflict, who often seem to think that taking up arms gives them an exclusive right to participate.

  • women, either because they are generally disregarded in society or because organizers ignore the issues of culture and role that make it hard for women to participate in the same ways as men do;
  • ethnic or religious minorities;
  • marginalized caste or ethnic groups, because they are excluded from meetings, live in remote areas, belong to small language groups, or do not understand constitutional issues;
  • noncitizens—even if they are long-term residents;
  • the elderly, who may have to stay at home; and
  • immigrants, who, even if citizens, may be victims of exclusion.

Especially in a society emerging from conflict, there may be no institutions that really represent the people.

Parliament, political parties, and local government may have collapsed, or they may simply be ineffective or unrepresentative. (Such issues may have been the cause of the conflict.) Parties and formal institutions that do exist should not be ignored; their cooperation may be essential for the success of the project.

Formal organizations should be identified, including trade unions and farmers’ associations; civil society networks and organizations; chambers of commerce; professional associations (e.g., teachers, nurses, and lawyers); and bodies representing “traditional authorities.” But in most societies there will be many other organizations: informal sector workers, squatters, victims of conflict, savings groups. Many of these may be largely invisible, especially to foreigners, but even to nationals focused on the capital city. In many countries, churches, temples, and mosques may be the principal organizations in communities’ lives, and the local schools may also be an important focus of life and locus of communication.

Formal groups are not the only way of thinking about the people and how they may be involved. Many people will not be organized at all, but they have equal rights to be involved. Women especially may not be organized; persons with disabilities may be concealed; marginalized communities may not be linked into the national structures.

Groups are important for helping to get a sense of the population and its divisions. But it should not be assumed that people will want to be involved only through organizations to which they are affiliated. A person may have interests other than that of being a farmer (represented by the farmers’ association), a woman (represented by the women’s self-help association), or a Christian (represented by a church). That person may want to be involved as a person directly. This section of the book addresses these questions of how people can participate and have their voices heard. Ensuring the participation of all key groups, and even of those who may not be formally associated with groups, may also promote greater transparency and ownership of the process.

2.3.10 Security

Today, many conflicts end in stalemate, and the constitutional process is one of negotiation among previously warring factions. Spoilers may remain outside the process and pose serious threats. Managers have to face the possibility, often quite real, that constitution-related activities will be disrupted by violence. In Iraq and Somalia constitutional commissioners were murdered and in Afghanistan rockets were launched in an attempt to hit the tent of the Constitutional Loya Jirga. Security procedures need to be developed to suit the context and all constitution-makers, staff members and those participating in the process should be briefed about them, such as what do to in case an armed intruder enters the constitution-making area or a vehicle is attacked.

Security is also essential to guarantee that a participatory process protects the rights to freedom of speech and assembly as well as personal security. In Zimbabwe [ongoing process] people participating in a public consultation meeting were beat up and even arrested for observing the process. Managers must determine the level of security needed to safeguard the process. In postconflict contexts in particular, official security forces may not be trusted; private security companies (even international ones) may be required (though their record has not always been good). And if there is a severe shortage of local security options, the international community may play a role. In insecure environments, constitution-makers or others may demand excessive security protection. Constitution-making venues of all types (for public consultation as well as deliberations) must be carefully selected to avoid security risks. It may be necessary to decide the context is so volatile that public consultation and travel must be limited.

Constitution-makers have addressed the issue of security in different ways. In Eritrea, management went directly to the heads of the military and negotiated with them for security for all aspects of the process. In Albania, local police and constabulary forces were enough to counter threats of violence. In Afghanistan [2004], the army checked every car entering the constitution-making area for bombs, perhaps now a common post-9/11 practice. Managers should be specific with security providers about their needs, and enter into a written agreement about such issues and how many security officials will cover each event and what they will be expected to do.

Handling security requires more creative solutions when the police or the military may have committed human rights abuses, may represent a particular interest and be considered biased, or may be viewed as poorly trained. In some contexts, police or other officials may be an impediment to public participation; in Kenya [2005] the police were asked to keep out of public consultation meetings because people feared to speak openly in their presence. Commercial security firms may sometimes be used instead of the police, either because of the inadequacy of the latter or because of their perceived loyalties.

The international community has helped provide security. These efforts have ranged from United Nations peacekeepers or other security forces providing security at constitution-making events or meetings to their providing security information. The international security providers should work in close coordination with the national actors so that no steps are taken that will undermine the process.

Outreach teams and field offices will need communications systems so that they can be in touch with their base. When the United Nations is involved, it judges security situations on a scale and takes corresponding precautions, including sometimes prohibiting United Nations employees or consultants from traveling by anything other than a United Nations vehicle, and barring them from going to certain places.

2.1.2 Deciding if a process is needed

No constitution is perfect, but this does not mean that a country needs a whole new constitution. Sometimes it may be a mistake to rush into a commitment to such a new constitution. People may insist on this precisely because they have not analyzed what is wrong with the existing constitution. “Let’s start from scratch” is a way of avoiding, at least for the time being, such detailed analyses. Before embarking on a major exercise of constitutional design, the question should perhaps be asked: “Is our journey really necessary?”

A problem with the government does not necessarily demand a new constitution. The people of the Philippines have resorted on several occasions to “people power” to remove governments, but though there have been initiatives to implement a different constitutional system, it is not assumed that immediate change is needed. The Kriegler report on postelection violence in Kenya observed that:

it is important that Kenyans honestly assess all the activities related to the 2007 generalelections so as to distinguish between those that can be attributed to anomalies, failures, and malpractices traceable to gaps or provisions in the constitution and laws of Kenya from those that can be attributed to a bad culture encompassing impunity, disrespect for the rule of law, and institutional incompetence (Kriegler Commission 2008).

There are arguments against constitution-making, including:

  • Expense. The costs of constitution-making in Africa have been estimated, in United States dollars, as the equivalent of $30 million for South Africa, $10 million for Uganda, $6 million for Ethiopia, and $4.5 million for Eritrea (or between 15 cents and $1.50 per person in the country).
  • Divisiveness. Constitution-making may be a great nation-building event, but if the wounds are too recent, or the process is not handled with extreme delicacy, the process may give rise to renewed or new conflicts.
  • Risk of failure. A majority of constitution-making processes may be said to have failed, in the sense that they have not led to the enactment of a new constitution.
  • Constitutions should have some permanency. A constitution that is changed frequently is not really a constitution at all, for it does not guide or regulate the affairs of government. Making a constitution work is not easy; it does not work unless politicians, citizens, courts, and other institutions take it seriously and take steps to make it work. A belief that problems can be solved by the mere adoption of a new constitution is a delusion.
  • None of this is intended to suggest that major constitution-making exercises are futile, but it is important to consider whether making a new constitution is necessary, or necessary immediately, or whether a more modest, incremental approach should be taken.

More modest enterprises

In some countries it may be enough to change a fundamental problem with the constitution, leaving the bulk of it unchanged. It might be more practical to have a simple process of review by a small group of experts given a limited task over a limited time, with the opportunity for public consultation, rather than a full-fledged process, which in some countries can be expensive, time-consuming, and even divisive.

There is a relationship between the complexity of the changes anticipated and the elaborate nature of the process that is set up. On the one hand, naturally, the more fundamental the changes, the more public input there should be. On the other hand, if an elaborate process is set up, it is quite likely that far-reaching proposals will be made, even if the initial mandate is limited. The original French constituent assembly was given the task of voting money for the king, but it seized the moment and became the government and the collective author of the constitution. Similar things have happened in West Africa, where national constitutional conferences have introduced changes that were more radical than had been anticipated.

Is a more modest approach feasible? Even in “no constitution” situations, it may not immediately be necessary to embark on a major constitution-making process; limited, temporary arrangements may be possible. Israel provides an interesting example. It became a separate country in 1948 and planned to hold a constituent assembly. But it was immediately invaded and, since there was a feeling that 1948–49 was not the right moment because of the potential for disagreement (mainly over the connection between religion and the state), it abandoned the constituent assembly idea and, over the years, has enacted a constitution in bits. (It simply used the United Kingdom’s pattern of government as its basic framework.) Various efforts to produce agreement on a single constitutional document have not borne fruit. In Chile and in Indonesia, major efforts at constitutional reform have not been successful, but over a period of years various changes have been enacted to move each country away from autocracy.

The constitutional moment?

It is sometimes suggested that certain situations make it more likely that a country will be able to prepare and adopt a new constitution. Some people feel that a crisis, or the perception that there is a crisis, is a prerequisite—indeed, that a country at peace with itself will rarely be able to make a new constitution. The “crisis” argument holds that a sense that something serious will happen if there is no constitution creates an impetus for parties whose rivalry might otherwise prove an obstacle to agreement to work together. A sense of shared excitement about the future may serve a similar purpose, though it is rare for all sections of society to share that excitement, as the recent experience of Bolivia shows.

Some countries have, however, made constitutions, or carried out major reviews, while at peace. Canada, Finland, and Switzerland are recent examples.

It is not always easy to predict whether the circumstances will be right for adopting a whole new constitution. This is perhaps particularly so with a major review, which may take some years, and which may result in a radically different situation than existed at the beginning. This was what happened to the Kenyan process—especially because there was an election partway through the process, and the incoming government was unenthusiastic about the proposed changes.

Not all constitutional moments are suitable for the adoption of improved constitutions. in 2010, the president of Sri Lanka capitalized on his military victory over the Tamil rebels to introduce sweeping changes to the constitution—some of which enhanced the power of his office and his personal power.