2.4.1 Determining the agenda of constitutional issues

Deciding on the issues that might be included in a new or revised constitution is an important task in many constitution-making processes. Determining the agenda is a separate task from deciding what the constitution will say about any given issue on the agenda. The agenda can be created in many ways, and it usually changes in the course of a process.

The importance of the agenda

How the agenda is determined can influence both the way a process develops and the shape of the final constitution:

  • When the agenda is controlled by a group in power, and is used as part of an effort to control the contents of the constitution, the agenda itself can be divisive.
  • In some processes where the agenda has been decided consultatively, this has contributed to building consensus on the way forward for a previously divided country.
  • Decisions on the agenda can influence other aspects of the process, including:
    • decisions on subjects to be included in public awareness and public consultation efforts;
    • the subjects to be considered by committees of a constituent assembly;
    • the structure of debate in the main constitution-making bodies; and
    • the contents of the final constitution.

What are constitutional issues?

The factors that shape the agenda of issues regarded as constitutional in any particular process can be divided into external and internal ones. External factors include:

  • historical and cultural traditions (views on constitutions and institutions created by them can depend on whether a country’s colonial links were to France, Spain, Portugal, or the United Kingdom);
  • the constitution’s role in defining the state so as to ensure international recognition;
  • treaties and conventions on human rights and their protection; and
  • donor pressure for good governance and accountability, which can make independent institutions to combat corruption into constitutional issues.

Internal factors include:

  • ideas about the ideal length of a constitution—it can be no more than a short statement ofprinciples in some countries, while others accept long and detailed constitutions;
  • history of the operation of constitutions in a country; and
  • the local issues that contribute to the origins of a constitution-making process, especially in a situation of peacebuilding or a transition from authoritarian rule.

There is no legal limit to the issues that can be addressed in a constitution. As a result, the agenda that could be debated as part of a constitution-making process is potentially unlimited. The main restrictions are practical. An open-ended agenda could contribute to pressures for a long and detailed constitution, covering many general matters that might better be handled later by laws and policies. Such a constitution can be difficult to implement, and can raise unrealistic expectations about the extent of the issues that can be dealt with by a constitution.

Public awareness programs can help people better understand the nature of constitutional issues and have realistic expectations about what a constitution can do.

Deciding the agenda in advance of the constitution-making process

There are several ways in which important aspects of the agenda can be decided in advance of the constitution-making process:

  • Interim constitutions: Interim constitutions can influence the agenda in at least two main ways. First, in a postconflict or transitional situation (e.g., South Africa [1996], Nepal [ongoing process]), an interim constitution usually provides a new and more inclusive or just system of government intended to operate until a final constitution is adopted. This can provide a new set of possibilities that may heavily influence the agenda. Second, an interim constitution can define principles and features to be included in the final constitution (as in South Africa). In that way it can determine much of the agenda in advance.
  • Peace agreements: Peace agreements can often play a similar role to that of interim constitutions in setting agendas of constitutional issues in advance of the process.
  • Negotiations in advance of a process: Governments reluctantly engaging in constitution- making processes are sometimes forced into public consultation with those demanding change. In addition to addressing the design of the process, such talks often result in identifying and clarifying the issues that will need to be addressed during the process. In Kenya, years of pressure for reform resulted in several conferences in 1998 among the government, the opposition, and civil society.
  • Other documents establishing a process: The law or other legal documents establishing a process often define some of the issues. For example, the 1972 terms of reference set by the colonial legislature for Papua New Guinea’s Constitutional Planning Committee, the 1988 statute establishing the Uganda Constitutional Commission, and the 2000 statute establishing the Constitution of Kenya Review Commission all identified key constitutional issues to be considered in the processes.
  • Authoritarian regimes: Authoritarian regimes sometimes attempt to control processes by restricting the issues that can be considered. In preparing for some francophone African national conferences in the 1990s, rulers of one-party systems tried to restrict consideration of options for more democratic systems. In multiethnic Nigeria in the 1970s, the military dictator, General Gowan, tried to limit political damage from the constitution-making process by eliminating major divisive issues from the agenda. He directed a constitutional committee to consider all territorial power-sharing possibilities other than unitary or confederal arrangements.
  • Political party “victorious” after conflict: In a few postconflict constitution-making processes, a victorious political party that dominates a deliberative body such as a constituent assembly can regard itself as authorized to determine the agenda. This occurred in Timor- Leste [2002], when the Fretilin party used its numbers to set the agenda for the elected constituent assembly by centering almost all debate on a draft constitution it had prepared previously, based on the constitution of Mozambique (another former Portuguese colony).

Setting the agenda in advance in these various ways can mean that it is decided by a narrow range of interests. The majority of groups and the mass of the people can be excluded. There are situations where this may be necessary (for example, in the transition from apartheid in South Africa). In other situations, determining the agenda in advance can be an antidemocratic aspect of a process, with long-term effects. For example, the sense of exclusion resulting from party domination of the constitutional agenda in Timor-Leste probably contributed to subsequent violent conflict in that country.

Setting the agenda in the course of the process

It is more common for the agenda to emerge during the constitution-making process. This can happen in many ways.

  • Early decisions made by the main constitution-making body: When a body such as a constitutional commission or parliamentary committee is set up to consult with the people about a new constitution, often one of its first steps is to decide on the main constitutional issues. In Eritrea, for example, the constitutional commission identified what it regarded as the key issues early in the process, and then developed its material for public consultation with the people about those issues.
  • Consulting the people on the agenda—a special stage in the process: In a few constitution- making processes, there has been a consultative stage of the process aimed at deciding the issues that should be considered. In some cases this has been specially planned. For example, one of the first things the Uganda Constitutional Commission did after it was established in 1989 was to hold a series of thirty-four district seminars of two days each, which were attended by more than twelve hundred people. The twenty-nine major issues identified by the commission during this process became the central agenda of issues for the commission in all its subsequent work. In Kenya, after considerable controversy about the constitution-making process through much of the 1990s, consultative national conferences involving many stakeholders held in 1998 achieved a consensus on both procedure and the agenda (though a further three years passed before an agreed-upon process could proceed in 2001).
  • A special body: National conferences held in French-speaking African countries have in several cases defined aspects of the agenda of constitutional issues that have then been dealt with through decisions made by other bodies. (See part 3.1.3.)

The agenda often changes during the process. There can be many reasons for this. For example, public debate on the initial agenda of constitutional issues may result in new issues being identified. In other cases, what were initially treated as many separate issues might be consolidated into a smaller number of related issues. There are also cases in which public consultation and public debate on issues in the early stages of the process make it clear that there is a consensus on how to handle most issues, leaving just a few issues that remain divisive or contentious.

Focusing on the divisive issues

In most constitution-making processes, there will be a few key issues that are the ones most likely to divide people. When the process is expected to contribute to conflict resolution and to build consensus on future directions in a divided country, great care may be needed in identifying and addressing such issues. In several constitution-making processes there has been a special focus on identifying such issues, and special procedures for making decisions about them.

For example, in Uganda [1995], more than three years of public awareness programs and public debates on the many constitutional issues had, by 1992, contributed to emergence of consensus on most issues. About ten specific issues had emerged as still divisive. They were given special attention through a process intended to resolve divisive issues. (See part 2.5.2.)