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.