2.2.4 Receiving and analyzing the people’s views

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reasons why views are not analyzed may include:

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

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

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

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

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

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

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

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

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

Requirements for receiving and processing views

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

Who collects and analyzes the views

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Analysis of the views

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

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

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

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

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

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

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

Staff, resources, and funds

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

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

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

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

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

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

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

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

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

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

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