Part 3: Institutions, groups, and procedures

The decision to leave the discussion of institutions and procedures for constitution-making processes to a late stage in this handbook was motivated by a conviction that the design of institutions ought to be determined in large part by their tasks. However, the process is often designed the other way round: the decision is expressed as something like “We must have a constituent assembly.” Other than recognizing that the general aim is to make a constitution, what the constituent assembly will do is spelled out only later.

It is also true that, in many countries, national traditions dictate what bodies will have responsibility for the process; indeed, for some readers this part may be of limited interest, because in their countries either custom or existing law is clear on the issue of institutions and processes. However, we venture to suggest that even for those readers this part may offer some insight: for example, not all constituent assemblies are made up or operate in the same way. There are even some differences in conducting referendums, and examining the experience of another country might be useful.

Increasingly, the constitution-making process is negotiated or designed, either in international conferences (Cambodia [1993] or Afghanistan [2004]), as part of interim arrangements (South Africa [1996] or Iraq [2005], Nepal [ongoing process]), in national conferences (Kenya [2005], francophone African countries), or through “roundtable” processes (in some Eastern European countries). In recent years there have been several comparative studies of constitution-making processes. This scholarship is aimed partly—even primarily—at drawing lessons about the most effective institutions and methods. The growing internationalization of processes means that decision-makers have access to several alternatives to their traditional approaches, and conscious decisions on the design are increasingly being made. Recent years have also seen new features of constitution-making processes, such as participation of both the international community and local citizens, which require new forms of institutions and procedures. Much can be learned from the successes and failures of countries that have pioneered innovations. The South African process, generally deemed to be successful, has been studied by several countries.

Having explored what is involved in making a constitution, we now turn to institutions and procedures. Systematic analysis of these also presents difficulties. Table 2 indicates that the same tasks may be performed by a range of different bodies. And drawing lines between different bodies is not easy. A constituent assembly is different from a parliament. But some parliaments carry out the same functions as the assemblies, and some constituent assemblies serve also as parliaments. Some constituent assemblies only debate a draft constitution prepared by someone else. Some carry out civic education, consult the public, prepare a draft, and then formally debate it. A commission may be quite small and expert, or rather large and not so expert, or even small and not expert! It may or not be independent—of government or of politics.

It is possible to view the United States constitutional convention in Philadelphia in the late eighteenth century as an early example of a constitutional commission (though we tend to classify it as a sort of constitutional assembly). Its mandate was to review and recommend changes to the confederal constitution, which would have been debated and possibly adopted under the mechanism for amendment of that constitution. (As is well known, the convention exceeded its mandate and established a new procedure for the adoption of its draft.)

We should warn against assuming that the same name indicates the same sort of animal in all countries, or that a different name indicates something different. A constitutional convention, a constitutional assembly, and a constituent assembly may be quite similar.

Our concern in this part is with how these bodies are formed, including their legal basis, how they operate—and how they might operate better.

Some principles of organization are essential. We have chosen again to focus on function rather than on form. We have grouped together institutions that generally perform rather similar functions. However, they also do tend to cluster in terms of size. So we begin with the big bodies that often carry out a lot of functions. They may indeed be the only constitution-making bodies in a given process: constituent assemblies, parliaments, and national conferences.

Then we turn to bodies with the core function of preparing constitutional proposals—including an actual draft constitution. They may do other things as well, such as civic education. These bodies might be called commissions, committees, or roundtables, and they might be (and usually are) specially formed, but might be longer-term bodies.

Next we look at administrative bodies. We discussed in part 2 the processes of administering and managing a constitution-making body. Here we look briefly at the institutions that carry out this role. We use the term “administrative management body” for these, although this is not the name any actual body is likely to have. These bodies will be called “secretariats or management committees” or something similar. Although the role this body plays is critical to the success of a process, it has largely been ignored in constitutional scholarship.

A lot of other official bodies may play limited roles in constitution-making. By no means will every constitution-making process have them, and many of these bodies will not have been planned from the beginning. They are a slightly “miscellaneous” collection, having little in common other than that they have some function in connection with the constitution. They include government departments, bodies that mange elections, bodies of experts, and the courts.

Many constitution-making processes require a referendum for the final decision on the draft, and less commonly while an effort is made to resolve differences on specific issues.

Box 35. Commissions or committees?

There is no real difference between these two words, at least in English. But usage may vary. In English it would be unusual to use “commission” to refer to a section of a larger body. English would refer to a “committee” of a legislature or assembly; Spanish might use “comisión.” “Commission” in English usage suggests a slightly more weighty body. We use “commission” for a separate body and “committee” for a part of a larger body.

How the bits may fit together

The case studies in appendix A suggest how these elements of a constitution-making process may fit together. No process will have every type of body or institution mentioned. Some may have only one official body. Here are some possible combinations:

  • Constituent assembly or legislature only
  • Commission → constituent assembly
  • Commission → constituent assembly → referendum
  • Commission → constituent assembly → legislature → referendum
  • National conference → legislature
  • National conference → referendum

Table 7: Comparison of a constitutional assembly and a parliament

Parliament (legislature)

Constitutional assembly

It functions by virtue of the constitution and according to the constitution

It makes the constitution—though this may sometimes be by virtue of law made under the authority of the existing constitution

It makes laws

It will not usually make ordinary laws, but it will make the constitution

It votes money for government (budget)

It has no control over finances

It holds the government accountable

It does not hold the government accountable

It is a body that represents the people—usually through elections and political parties—and functions as their representative, rarely with much active public involvement

It usually represents the people—but its members may be chosen other than through elections, or parties; it may involve the public in its activities far more than the legislature would; it is a manifestation of the sovereignty of the people

In a parliamentary system it constitutes a government (the government will usually be drawn from among its members)

It will not affect the formation of a government

Its own accountability to the people depends largely on periodic elections

It is unlikely to have any mechanism by which it is accountable to the people (other than in that decisions may be submitted to them through a referendum)

In any of these (and other possible) chains of institutions, other bodies are likely to be involved. Government departments and electoral bodies are the most obvious; special committees may be involved, as will (almost certainly) local and perhaps foreign experts. Civil society will offer input and perform a variety of roles.

Different patterns

In the contemporary period, the commission has been used extensively in Africa, including Tanzania [1965], Ethiopia [1994], Uganda [1995], Eritrea [1997], Zimbabwe [1999], Rwanda [2003], Kenya [2005; 2010], and Zambia (four times). We suggest why this may be so in part 3.2.3.

It has also been used in Afghanistan [2004], and in Pacific island countries such as Papua New Guinea [1975], Fiji [1997 and earlier], Bougainville [2004], and Nauru [2010]. States or territories associated with the United States tend to use constitutional conventions, though these may be preceded by commissions—as in American Samoa in 2010.

Asia, Europe, and Latin America have more often used only a constituent assembly. India led the way in Asia [1950] and was emulated by Nepal [1951 and ongoing process]; Indonesia had an abortive constituent assembly [1959]. France [1789] had perhaps the first true constituent assembly, and many European countries have followed suit, including Norway in 1814 and Italy after World War II, and some Eastern European countries in recent years. In the modern era, many European countries have carried out constitutional reviews through ordinary legislatures.

The USSR had a short-lived constituent assembly after the revolution. In Latin America the constituent assembly, without any preparatory commission, remains the major body.

Some francophone African countries, and a few others, have used the device of a national conference. The origin of this can also be traced back to the French constituent assembly— which again shows the difficulty of exact terminology.