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.