1.3.1 The importance of a design

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

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

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

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

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

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

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