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Constitution
Making: Tradition and Innovation
Constitution
Making for the 21st Century
The
Importance of Process
Participation
by Right
Practicing
Participatory Constitutionalism
Women
Making Constitutions
Lessons
for the Constitution-Making Process
About the
Report
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SPECIAL REPORT 107
Vivien Hart
Democratic Constitution Making
Briefly . . .
- We live in an era of constitution making. Writing a constitution is
part of many peace processes. New nations and radically new regimes that
seek democratic credentials make writing a constitution a priority. In a
changing world, constitutional practice is also changing. Twenty-first
century constitutionalism is redefining the long tradition of expert
constitution making and bringing it into the sphere of democratic
participation.
- How the constitution is made, as well as what it says, matters.
Process has become equally as important as the content of the
final document for the legitimacy of a new constitution.
- A right to public participation in democratic governance
exists in international law. This right packs a moral punch but it lacks
legal teeth and effective enforcement. Does this right extend from
everyday governance to the process of constitution making? The United
Nations Committee on Human Rights has recognized a specific right to
participate in constitution making.
- Public participation is often taken to mean voting—for example,
electing a constitutional convention or ratifying a constitutional text
by referendum. Especially in developing nations in Africa and elsewhere,
however, experiments with new forms of participation are attempting to
place initiative in the hands of citizens and to create an open
constitutional conversation in which the public shares in
agenda-setting, content, and ratification.
- Genuine public participation requires social inclusion, personal
security, and freedom of speech and assembly. A strong civil society,
civic education, and good channels of communication between all levels
of society facilitate this process. Only a considerable commitment of
time and resources will make genuine public participation possible.
- A democratic constitution cannot be written for a nation, nor
can one be written in haste. "Interim" or "transitional"
constitutions that include guarantees for a continuing, open, and
inclusive process for the longer term offer one solution to urgent needs
for a framework of governance in new, divided, or war-torn
nations.
- Participatory constitution making is today a fact of constitutional
life as well as a good in itself. Despite challenging difficulties of
definition and implementation, a democratic constitution-making process
is, in the words of African observer Julius Ivonhbere, "critical to the
strength, acceptability, and legitimacy of the final
product."
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Constitution Making: Tradition and Innovation
We live in an era of constitution making. Of close to 200
national constitutions in existence today, more than half have been
written or re-written in the last quarter century. Constitution making has
become a part of many peace processes. New nations and radically new
regimes, seeking the democratic credentials that are often a condition for
recognition by other nations and by international political, financial,
aid, and trade organizations, make writing a constitution a priority. In
many cases, both the ways in which constitutions are written and the ideas
of sovereignty, citizenship, and rights that are embodied in these
foundational documents depart radically from the tradition epitomized by
the United States Constitution.
In 1787, the new United States of America was the originator
and model of traditional constitution making by a hand-picked elite group,
and of the constitution as marking a settlement of conflict and
inaugurating a new regime of powers and rights. Mainstream scholarship has
generally presented the American Constitution as the fixed outcome of a
period of nation building and constitution making. Admirers, offering this
as an example for others, tend to want to duplicate its perceived virtues:
constitution making as an "act of completion," the constitution as a final
settlement or social contract in which basic political definitions,
principles, and processes are agreed, as is a commitment to abide by them.
Constitution makers today still confront the problem posed
by Alexander Hamilton in 1787, of whether "societies . . . are really
capable or not of establishing good government from reflection or choice,
or whether they are forever destined to depend for their political
constitutions on accident and force." The makers of "new" constitutions do
not seek to throw the entire tradition onto the scrap heap. Constitutions
remain higher law, specify the institutions of governance, define the
rights, duties, and relationships of state and citizens, and set the tone
or establish the identity of the nation-state. Onto this traditional
foundation, however, today's framers seek to build new practices. Recent
constitution-making processes have been accompanied by massive efforts to
involve the public before, during, and after the text is finalized.
Examples of new practice include: prior agreement on broad principles as a
first phase of constitution making; an interim constitution to create
space for longer term democratic deliberation; civic education and media
campaigns; the creation and guarantee of channels of communication, right
down to local discussion forums; elections for constitution-making
assemblies; open drafting committees aspiring to transparency of decision
making; and approval by various combinations of representative
legislatures, courts, and referendums.
There is no simple transition to a new constitutionalism.
Control of the process and of the ultimate distribution of power is at
stake and participatory constitution making remains highly controversial.
Constitution making has not been made easier, and by no means all of these
innovations, nor of the constitutions that result, have been successful.
But the process does move incrementally closer to the needs of the present
day.
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Constitution Making for the 21st Century
Alexander Hamilton's still-open question remains central to
prospects for a peaceful and democratic world. In the 21st century, proof
of our capacity for living together and sharing in good government is not
only ever more urgently needed but also requires—and is
generating—creative thinking about the making and content of present-day
"political constitutions." Constitutional experimentation in many new and
newly democratic nations challenges older constitutional democracies to
rethink their own practice and to engage in a process of mutual learning
about the contribution of constitution making to conflict transformation
and sustainable peace.
A nation confident in a stable future of internal harmony
and agreed purpose is not (if it ever was) the typical site of
constitution making today. A changed world calls the utility of the
traditional model of the constitution into question. Consider how high a
bar that traditional model of an act of completion sets to establishing
and legitimating constitutions in situations of conflict. Yet making a
traditional constitution is seen by many as essential to the establishment
of post-conflict governance by providing a framework to manage diversity
and ensure stability.
The late 20th century has seen nations, old and young, that
are deeply divided, often to the point of violence. Nation-states, defined
by established boundaries and the sole possession of sovereignty, have
been challenged from inside by claims for self-determination or secession,
and from without by the proliferation of transnational political or
economic treaties and powers with global reach. At the same time,
successful economic and social development have been declared, as in the
1993 Vienna Declaration of the United Nations that now frames development
and human rights policy, to go hand in hand with democratization.
Meanwhile around the world many marginalized groups—indigenous peoples;
the poor; racial, ethnic, and language identity groups; and, cutting
across all social categories, women—have demanded inclusion, political
participation, and power sharing.
Conflicts over the identities, powers, and rights of groups
seem almost endemic, and, as such conflicts reproduce themselves in the
form of new identities and claims, are likely to be a permanent feature of
21st century polities. The nature of many modern conflicts makes a final
resolution hard to reach. In such circumstances, finding a way of living
together within major disagreement is the more modest goal. Traditional
constitution making as a conclusion of conflict and codification of a
settlement that intends permanence and stability can seem to threaten
rather than reassure. Citizens who actively reject a final act of closure
seek instead assurances that constitution making will not freeze the
present distribution of power into place for the long term, nor exclude
the possibility of new participants and different outcomes.
To imagine a constitutional settlement under which diverse
and disagreeing groups can live, while continuing to engage in a freely
accessible debate about that settlement itself, is a challenging
proposition. The tension between the security and stability offered by the
traditional ideal of constitutionalism and the flexibility called for by
new circumstances is what places process at the heart of the new
constitutionalism. A permanently open process must itself satisfy
qualitative standards that were previously applied only to the outcome of
constitution making. We used to think of a constitution as a contract,
negotiated by appropriate representatives, concluded, signed, and
observed. The constitution of new constitutionalism is, in contrast, a
conversation, conducted by all concerned, open to new entrants and issues,
seeking a workable formula that will be sustainable rather than assuredly
stable.
It is in such an environment of conversational
constitutionalism that the issue (startling to some traditionalists) of a
right to participate in making a constitution has arisen. The idea is
hotly contested by those who argue that only elites in modern societies
possess the moderation, technical expertise, negotiating skills, ability
to maintain confidentiality, and above all rational incentives to
compromise so as to maintain power that make for effective constitution
making. But it is hard to argue against democracy. The elite-made
constitution, according to the new paradigm, will lack the crucial
cultural element of legitimacy. It will do so because the process, not
just the final text, is seen as flawed.
A democratic constitution is no longer simply one that
establishes democratic governance. It is also a constitution that is made
in a democratic process. There is thus a moral claim to participation,
according to the norms of democracy. A claim of necessity for
participation is based on the belief that without the general sense of
"ownership" that comes from sharing authorship, today's public will not
understand, respect, support, and live within the constraints of
constitutional government. Whether there is also a legal right to
participate, for whom, and what all of this means in practical terms, are
also key issues for modern constitutionalism, whose reputation and
effectiveness depend upon democracy in its process as well as its outcome.
Experiments with public participation in the process of making
constitutions are a striking feature of "new constitutionalism." It is
with such issues of process that this report is concerned.
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The Importance of Process
How the constitution is made, as well as what it says,
matters. One of the most striking innovations in the constitution-making
practice of recent decades is that norms of democratic procedure,
transparency, and accountability that are applied to daily political
decision making are now also demanded for constitutional deliberations. Is
this window dressing with democratic rhetoric, or can new ideas and
practices make a difference? A study in contrasts in North American
constitutionalism illustrates the radical changes in attitude to
constitution making involved.
No one would expect an 18th century process to match the
standards of the 21st century. Nor would anyone describe the making of the
American Constitution in 1787 as a democratic exemplar for today. Yet
constitution making in the United States offers an important lesson.
Scholars have recently reflected on Article V of the U.S. Constitution,
the provision for constitutional amendment, as an admission by the framers
of the likely imperfection of the Constitution and a permission to work
within its frame to adjust its terms (see especially Sanford Levinson's
edited volume, Responding to Imperfection, published in 1995). Yet
the limitations of the amending process are considerable. The fact that
the wishes and needs of indigenous peoples and African Americans were
originally considered irrelevant, and that those of women were considered
to be represented by men, left the American polity with long-term
problems. When newly assertive groups eventually demanded recognition,
finding solutions was hampered by the necessity of acting within the
constitutional framework, drafting amendments and litigation according to
a text set apart, a foundational document outside the bounds of regular
politics. The Constitution is subject to special and especially difficult
procedures for amendment and the language of constitutional law is arcane.
Thus even the first step for excluded groups, entry to the constitutional
debate, has never been easy. Gaining each amendment or new interpretation
has typically involved a decades-long struggle for piecemeal reform.
Facing a similar upsurge of claims for constitutional
recognition, Canada has taken a significant step towards opening the
constitutional settlement to full democratic discussion. No less a body
than the Canadian Supreme Court has endorsed democratic process, in its
advice on the constitutional position of a potential act of secession by
the province of Quebec. The Court's 1998 decision regarding the
Reference re Secession of Quebec defined democracy as a core
Canadian constitutional principle. This meant, the court declared, "that a
functioning democracy required a continuous process of discussion." The
court noted further that "no one has a monopoly on truth," a fact implying
a duty to listen to "dissenting voices" and to seek "to acknowledge and
address those voices," even when the most basic unity of the nation was at
stake. The Canadian Constitution, the court concluded, "gives expression
to this principle [of democracy] by conferring a right to initiate
constitutional change on each participant" and imposing "a corresponding
duty . . . to engage in constitutional discussions in order to acknowledge
and address democratic expressions of a desire for change." The Canadian
Supreme Court decision is a summation of new constitutionalism, of
constitution making as a process rather than a once-and-for-all defining
moment, and of democratic re-negotiation as the heart of a politics of
recognition and inclusion. The Canadian Constitution is defined as a forum
for a historically continuous discussion of the identity of the Canadian
nation.
In other words, participatory constitution making has become
one criterion of a legitimate process. Where the premise of
constitutionalism as conversation is taken on board, constitution making
can no longer be confined exclusively to the domain of "high politics" and
negotiations among elites who draft texts behind closed doors. In the
context of a traditional constitution, presumed to stand above and to
structure democratic politics, the extension of democratic process to
include free, open, and responsive discussion of the constitutional
settlement itself represents a radical departure, but one that attempts to
overcome the problems of entry of new participants and of an equal voice
for all concerned regardless of their expertise.
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Participation by Right
It is easy to say that public participation in constitution
making is desirable. But this remains a matter of opinion and matters of
opinion are hard to enforce. A right to public participation in
constitution making creates a stronger ground on which to stand. Major
international rights instruments and national constitutions do grant a
general right to democratic participation, although one that is lacking
legal teeth and effective enforcement. However, the extension of the right
to participate to constitution making, breaching traditional assumptions
that the constitution-making process stands outside normal democratic
activities, has been contested. For a long time, even general democratic
participation has been considered at best to be an "emerging right," in
the words of an influential article on "The Emerging Right to Democratic
Governance," by international law professor Thomas M. Franck (published in
the American Journal of International Law for 1992). But the formal
endorsement of democracy does pack a moral punch and its diffusion in
international conventions and new national constitutions supports
expectations that it should be observed in constitution-making processes.
And recent developments have given participation in constitution making a
textual authority in international law that greatly strengthens its
status. These occur in a decision of the United Nations Committee on Human
Rights (UNCHR) acting in its judicial capacity, and in a General Comment
from the same source, both interpreting the right granted in the United
Nations International Covenant on Civil and Political Rights (ICCPR) as
extending to constitution making.
The right to participate in constitution making might
logically be derived from the general meaning of "democratic
participation" in the UN Declaration of Human Rights (1948, Article 21)
and especially Article 25 of the ICCPR (a covenant agreed in 1966 and
entered into force in 1976). Article 25 establishes a right to participate
in public affairs, to vote, and to have access to public service: "Every
citizen shall have the right and the opportunity . . . without
unreasonable restrictions: (a) to take part in the conduct of public
affairs, directly or through freely chosen representatives; (b) to vote
and to be elected at genuine periodic elections which shall be by
universal suffrage and shall be held by secret ballot, guaranteeing the
free expression of the will of the electors; (c) to have access, on
general terms of equality, to public service in his country."
Later UN conventions and declarations against race and
gender discrimination and on the rights of minorities make similar
promises. Regional and transnational declarations such as the African
Charter on Human and Peoples' Rights (1981, Article 13.1), the Asian
Charter of Rights (1998, Article 5.2), and the Inter-American Democratic
Charter (2001) all declare a general right to political participation to
be a fundamental principle.
As international lawyer Gregory H. Fox noted in a volume
edited with Brad R. Roth, Democratic Governance and International
Law (2000), at the start this "modest approach to democratization"
generally "focused on electoral processes." But successive documents and
judicial interpretations have gradually expanded the content of
participation itself, the arenas of participation, and the accompanying
penumbra of rights (including political equality, freedom of speech and
association, and rights to inclusion and equality) that genuine
participation presupposes. Along the way, the meaning of the ICCPR phrase,
"to take part in the conduct of public affairs," has
increasingly been explored to discover what those open-ended terms, "take
part" and "public affairs," might mean. In the course of this process of
definition, two documentary sources have joined the record and now ground
the international right to participate in constitution making. Remarkably
well-hidden in the body of UN political rights doctrine, these can be
described as both under-used to date, and also ripe for development.
The first is a ruling in 1991 from the UNCHR, acting in its
judicial capacity to hear individual complaints under Optional Protocol I
to the ICCPR. Marshall v. Canada (Human Rights Committee,
CCPR/C/43/D/205/1986, 3 December 1991), a case brought in 1986 and decided
five years later, first authorized a specific right to participate in
constitution making as an undoubted part of public affairs. Leaders of the
Mikmaq tribal society made the claim against the Canadian government that
exclusion from direct participation in a series of constitutional
conferences "infringed their right to take part in the conduct of public
affairs, in violation of article 25(a) of the covenant [the ICCPR]." The
UNCHR ruled that: "At issue in the present case is whether the
constitutional conferences constituted a "conduct of public affairs. . .
[and] the committee cannot but conclude that they do indeed constitute
a conduct of public affairs"(italics added).
Winning only a pyrrhic victory, the Mikmaq people learned
that while there was indeed such a right to participate in constitution
making there had been no infringement in their case. Thus the Mikmaq
people's efforts, while gaining legal standing for the right to
participate in constitution making, also succeeded in establishing a major
limitation to the practical value of the legal right. The UNCHR also ruled
that: "It is for the legal and constitutional system of the state party to
provide for the modalities of such participation," and "Article 25(a) of
the covenant cannot be understood as meaning that any directly affected
group, large or small, has the unconditional right to choose the
modalities of participation in public affairs. That, in fact, would be an
extrapolation of the right to direct participation by the citizens, far
beyond the scope of Article 25(a)." Although the Mikmaq leaders stated
that their submissions through an intermediary body had never even been
laid on the table, the UNCHR found the Canadian provisions for the
representation of "approximately 600 aboriginal groups" by "four national
associations," and later by "a 'panel' of up to 10 aboriginal leaders,"
adequate to meet the requirements of Article 25.
The second UNCHR textual authority is found in its General
Comment on Article 25 of the ICCPR, the right to participation, issued on
July 12, 1996. First, the key importance of Article 25's general right to
participation is underlined: "Whatever form of constitution or government
is in force, the covenant requires states . . . to ensure that citizens
have an effective opportunity to enjoy the rights it protects. Article 25
lies at the core of democratic government." The General Comment then
declares decisively: "Citizens also participate directly in the conduct
of public affairs when they choose or change their constitution"
(italics added). Although the prevailing opinion is that a General Comment
is authoritative but not binding in law, this unequivocal statement,
coupled with the earlier judicial precedent, undoubtedly does place
participatory constitutionalism on a newly secure footing.
Like Marshall v. Canada, the General Comment lacks
any specification of what a participatory constitution-making process
would look like. But unlike most of the international conventions that
preceded it, as well as the very limited notion of representation in
Marshall v. Canada, the General Comment does explicitly expand the
scope of democratic participation beyond the act of voting. Assemblies and
accountable representation, referenda and electoral decision making,
"public debate and dialogue," and citizens' "capacity to organize
themselves" are all identified as modes of participation. Thus the support
in international law for a right to participate in constitution making is,
inch by inch, gaining footing and expanding in scope. In the meantime, the
practice of participatory constitution making in many parts of the world
is running ahead of the international rulebook.
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Practicing Participatory Constitutionalism
Public participation is often taken to mean voting, as for
example electing a constitutional convention or ratifying a constitutional
text by a referendum. As we saw earlier, Canada provided one early example
of groups from outside the closed circle demanding to join the
constitution making process. But especially in developing nations in
Africa and elsewhere, experiments with new structures and forms of
participation are attempting to develop an open process that places
initiative in the hands of citizens and creates a constitutional
conversation. In many cases, rather than working within the framework of
an existing body of procedures and precedents, these nations are starting
with a clean slate.
Canada's clean slate was the process of writing a new
Charter of Rights and Freedoms, ratified in 1982. Canadian
constitutionalism since the 18th century had been shaped by conflict,
especially the search for reconciliation of francophone and anglophone
interests and for a status for Quebec that would recognize its distinctive
identity without giving it special privileges. In the early 1980s, women
mobilized to insist that their interests be fully represented. Canadian
first nations also seized the moment to claim a special status in Canadian
governance. The constitutional conversation had broadened and deepened
long before the open-ended discussion of diversity was endorsed as a
principle by the Supreme Court. But we do not need to look only to the
older western liberal democracies for new standards. The recent record of
constitution making elsewhere abounds with experiments in public
participation.
Just a few examples suffice to illustrate the widespread
adoption of new and open processes. In 1986, the Nicaraguan National
Assembly invited comment on the draft of a new constitution. Some 100,000
citizens took part in open town meetings, forwarding 4,300 suggestions. In
1988, constitution makers in Uganda and Brazil requested suggestions
before, as well as comment after, the drafting process, with equally
impressive levels of response. In 1994, the South African Constitutional
Assembly encouraged a nation of first-time voters to participate in the
constitution-making process with the slogan: "You've made your mark, now
have your say." Polls estimated that 73 percent of South Africans were
reached by the assembly's campaign. The public made two million
submissions. Between 1994 and 1997, Eritreans engaged in constitutional
education and consultation, addressing a nation with markedly low literacy
rates through songs, poems, stories, and plays in vernacular languages,
and using radio and mobile theatre to reach local communities. In 2002,
members of the Rwanda drafting commission and thousands of trained
assistants fanned out to spend six months in the provinces, so that
constitutional education and discussion could become an integral part of
community life. In 2003, the constitution review process in Kenya is
operating under a statutory requirement that Kenyans have every
opportunity to participate. The goal, as the Kenyan Commission claimed, is
"a people-driven review process whose final product will be a people-owned
constitution."
The South African Constitution of 1996 is widely regarded as
a model constitutional text. Likewise, the process by which it was made
has been hailed as a key part of the successful transition from the
oppression of apartheid to a democratic society. The following features of
the South African process illustrate the context and challenges of
democratic constitution making and set the context for evaluating its
general potential and problems.
In all, it took seven years, from 1989 to 1996, to achieve
the final constitution. Almost five years elapsed between the first
meeting of Nelson Mandela and Prime Minister P. W. Botha in 1989 and
agreement on an interim constitution and the first non-racial election in
1994. Throughout these years, outbreaks of violence threatened the
process.
In a key phase from 1990 to 1994, agreements on process were
negotiated in private and public sessions between former adversaries.
These included a 1990 agreement to negotiate about constitutional
negotiations; prolonged arguments from 1991 through 1992 about the form
the constitution-making process should take; agreement in April 1993 on
procedures; and in December 1993 agreement on an interim constitution
including principles and procedures binding on the final
constitution-making process. In April 1994, the first non-racial election
for parliament was held with a voter turnout of about 86 percent. The
following month, the new parliament met for the first time as the
Constitutional Assembly.
From 1994 through 1996 the South African process became a
full-scale demonstration of participatory constitution making. Until that
time, the public had had no direct role in constitution making. Now their
elected representatives in the assembly reached out to educate them and
invite their views. The educational effort included a media and
advertising campaign using newspapers, radio and television, billboards,
and the sides of buses; an assembly newspaper with a circulation of
160,000; cartoons; a web site; and public meetings; together these efforts
reached an estimated 73 percent of the population. From 1994 through 1996
the Constitutional Assembly received two million submissions, from
individuals and many advocacy groups, professional associations, and other
interests.
In the final phase from 1994 through 1996, in tandem with
the participatory campaign, committees of the assembly drafted a new
constitution within the parameters attached to the 1994 interim
constitution; a first working draft was published in November 1995,
leaving aside 68 issues for further work; a revised draft was produced in
April 1996; and a final text in May 1996. From July through September 1996
the Constitutional Court reviewed the text; the court then returned the
text to the assembly for amendments, which were made in October. In
November, the court gave its final certification and in December,
President Mandela signed the constitution into law.
The South African process took time. It was phased. It
benefited from an interim constitution that allowed the dialogue of
transition to continue. Participation was invited at a chosen moment
rather than throughout and then creativity and resources were committed to
facilitating a serious dialogue. Trust that the outcome would be
consistent with the 1994 democratic principles was created by the
continuation of the conversation between judicial certification and
parliamentary confirmation. As in Canada, groups including women and
traditional authorities found voice and access and made sure that their
interests were taken into account. Also important was the fact that South
Africa had a pre-existing civil society that could be drawn in as a
counterweight to the entrenched racial and partisan divisions of politics.
Other important factors that sustained the formal process include
patience, especially in the face of violence; a willingness by all
concerned to take some bold steps; and a combination of negotiation in
private over some of the most difficult issues and unprecedented public
involvement.
For comparison, let us look at the recent Rwandan process,
promised by the Arusha Peace Accord of 1999, with the main phase of
constitution making implemented in 2002 and completed by a referendum in
May 2003. The Action Plan of the Constitutional Commission elected by the
National Assembly (it can be found in full at http://www.cjcr.gov.rw/)
required, in sequence, in its own words:
- The training and sensitization of the population about the
Constitution;
- The consultation of the population on the content of the
Constitution;
- The writing and validation of the draft text of the Constitution;
- The referendum on the text of the Constitution as approved by
Parliament.
The budget for these activities ran to about US$7 million,
the 12 commissioners spent six months participating in local programs and
debates, and in the final referendum almost 90 percent of the electorate
voted, with 93 percent of those voting approving the new constitution.
Notably, public participation was initiated even before a constitutional
text was drafted. Again, the process was carefully staged, the commitment
of time and resources was considerable, and participation was not simply
structured on existing party lines.
The Rwandan process, as too the current Kenyan process, also
suggests another characteristic of these creatively participatory
processes. Constitutional re-visioning comes into play when the
alternative is unsustainable or too dire to contemplate, whether that be
dictatorial oppression, violence, or genocide. A democratic
constitution-making process contributes to making peace because the
prerequisite of any livable alternative to the horrors many nations have
experienced is that all parties are willing to try to keep talking about
their disagreements. Using words that echo Alexander Hamilton's, quoted
above, philosopher Stuart Hampshire concluded in his recent book,
Justice Is Conflict (2000): "Because there will always be conflicts
between conceptions of the good, . . . there is everywhere a
well-recognized need for procedures of conflict resolution, which can
replace brute force and domination and tyranny." The quality of the
process as a means of conflict transformation lies in ensuring that all
who have views and grievances have an effective voice, that participation
is genuine and not a charade.
Constitution making is essentially about the distribution of
power. Unsurprisingly, the idealism of the innovations described above
must be tempered with realism about who is really in charge. In both South
Africa and Rwanda, political elites initiated the process of
constitutional change, provided the personnel for the key institutions,
and framed the educational campaigns. Official ambivalence and continuing
attempts to block the process in Kenya reveal how a participatory process
initiated from perceived political necessity can threaten an elite with
loss of control and incur their resistance. At the most cynical extreme, a
determined elite or one that is confident of its continuing control may
offer a participatory process as a charade, a democratic hoax intended to
mollify unrest by granting the appearance of democracy without its
substance. The achievements of participatory constitution making, then,
are not to be romanticized.
Zimbabwe's recent experience provides a cautionary tale. In
1997 civil society groups and the political opposition formed an umbrella
organization that pressed for a constitution-making process and insisted
that this be conducted on participatory lines. In 1999, President Robert
Mugabe reluctantly established a commission that was instructed to produce
a draft constitution with the fullest public consultation. On paper, the
official Observer Mission of the Center for Democracy and Development
(CDD, a London- and Lagos- based non-governmental organization) reported a
model process: public hearings, an outreach program of town hall meetings
and other community activities, a multilingual media campaign, scientific
polling, an international conference. Their report (The Zimbabwe
Constitutional Referendum, published in 2000) estimates that "the
commission received about 7000 written submissions, held more than 4000
meetings nationwide and interacted directly in public meetings with more
than half a million people." But behind the formal facts lay a
manipulative process. The appointed commission was controlled by the
president's party; only 13 percent were women. Bitter partisan disputes,
intimidation, and violence erupted. The commission's draft constitution
was sent to President Mugabe without any opportunity for further public
comment. He quickly forwarded it for a referendum vote without possibility
of amendment. In February 2000, the electorate rejected the draft
constitution by 54 to 46 percent.
Immediately after the vote Lewis Machipisa editorialized in
Africa News that this "'no' vote is also a 'no' vote against the
arrogance that we experienced from the government. They didn't treat us as
people who mattered." A survey reported by Masipula Sithole and Charles
Mangongera in the journal Agenda in March 2001 found that 43
percent of "no" voters believed that "most people rejected the draft
constitution because it did not fully take into account the expressed
wishes of the people." As the CDD concluded, "a flawed process could only
produce a flawed product." The process, CDD reported, was stacked, lacked
transparency, was short on education and on translations from English, was
rushed (taking a mere 10 months all told), and ultimately lacked
credibility. The only recourse for frustrated Zimbabweans was the negative
one of voting down the entire document.
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Women Making Constitutions
One further characteristic of the practice of participatory
constitution making is visible in many of these accounts, yet has received
little concerted comment. The pressure to resolve conflict through
constitutional conversation has often come from long-term disagreements,
conflicts, and wars over some combination of racial, ethnic, and
territorial boundaries. Where participatory constitution making has
offered a forum for reconciling division and redressing grievances, it has
often also provided an opportunity for women to gain representation in
process and outcome. Indeed, women have at times been instrumental in
demanding such a constitutional opening, where governance or social
conditions have previously made free entry difficult or silenced their
voices.
In Nicaragua in 1986 women's effectiveness was a matter of
comment by seasoned observer Andrew Reding. He reported in his article "By
the People," published in Christianity and Crisis: "The women stunned
everyone. Hundreds of them took turns denouncing the language of the first
constitutional draft. This in spite of the fact that the draft was already
strong on women's rights." Ugandan women mobilized to participate in the
10-year constitution-making process; the constitution that came into force
in 1996 was described by Oliver Furley and James Katalikawe (in African
Affairs for 1997) as outstanding in "the degree to which it attempts
to promote and protect the rights of women." In 1992–93, Cambodia, in a
constitution-making process assisted by the United Nations as a way
forward from a violent past, provided one of many examples of women's
important role in newly open processes. Women comprised 63 percent of the
Cambodian population, and, Stephen P. Marks reported in a paper prepared
in 2003 for the U.S. Institute of Peace project on Constitution Making,
Peacebuilding, and National Reconciliation, a women's movement emerged
that demanded a role in making Cambodia's new constitution: "During a
four-day National Women's Summit, . . . 109 women from eight provinces
spoke out on this issue. One of the organizers . . . said, 'We want to
participate at all levels of policymaking, including drafting the new
constitution.' " Thus South African women had precedents to follow when
they called for (and won) a presence on the crucial drafting committees
there, strong guarantees of gender equality, and protections against
discrimination. In Rwanda as in Cambodia, in the wake of destructive civil
war, women again comprised a large majority of the population. Three of
the twelve commissioners in Rwanda were women, as were seven of
twenty-nine Constitution Review commissioners in Kenya.
Participatory constitution making is by definition
inclusive. Yet in few nations do women, in the words of the ICCPR, "take
part in the conduct of public affairs" on an equal basis with men. Women
are usually demographically a majority, the more so in some post-conflict
nations where the loss of male lives or the flight of males has grossly
skewed the ratio. As democratization and development have become linked in
international programs, women's education, social contribution, and
political participation have been identified as important to success. The
institutionalization of an international women's movement and
opportunities for networking and sharing experience through events such as
the United Nations' World Conferences on Women have provided motivation
and support to women to seek out the formative moment of constitution
making in order to ensure gender fairness in any new regime. Furthermore,
women's presence across all party lines and demographic categories
sometimes enables them to unite, or to resolve disputes across otherwise
sharp dividing lines, as the Northern Ireland Women's Coalition is
credited with having done on several occasions in the negotiation for and
implementation of the Belfast Agreement of 1998.
Women are not primarily responsible for the initiation of
participatory practices, whose origins are multiple—in human rights
debates, in democratization movements, in anti-colonial movements
structured on democratic lines, and other places. Women may, however, both
particularly benefit from constitutional change, with its opportunities
for inclusion, and support and encourage the expansion of participatory
methods. Fiona Mackay and others, in a forthcoming essay (in Women
Making Constitutions, edited by Alexandra Dobrowolsky and Vivien Hart,
October 2003) offer evidence that women in politics on the whole display
"a more outward looking and collective orientation," and will emphasize
"establishing a dialogue based on evidence and prior preparation." We may
learn from such evidence that women bring attitudes and experience highly
appropriate to democratic constitution making and that their increasing
participation will give impetus and depth to developing practice.
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Lessons for the Constitution-Making Process
At its best, participatory constitutionalism works and
counteracts the arguments in support of elite negotiation as the sole
effective mode. At its worst, as in Zimbabwe, it provides only another
guise for the exercise of raw power. In Zimbabwe, the public saw through
the hoax and responded by negating the process with a "no" vote in the
referendum of 2000. For vulnerable citizens to have some recourse other
than such a negative response, however, internal contextual factors
including a strong civil society or external factors such as an
international right and/or an international enforcement mechanism are
means of empowerment. Genuine public participation requires social
inclusion, personal security, and freedom of speech and assembly. A strong
civil society, civic education, and good channels of communication between
all levels of society further facilitate the process.
Only a considerable commitment of time and resources makes
genuine public participation possible. Even if we count South Africa's
starting point as the moment of agreement in 1991 to negotiate the
process, constitution making in that highly successful case took at least
five years. Many would argue that the process was underway at least two
years before that, from the moment leaders began tentative approaches
across the racial divide; clearly, part of the process is the building of
an adequate level of trust between elites and among the general public to
enable a constitutional conversation to take place at all.
Modes of participation vary considerably—there is no one
model appropriate to all nations. South Africa elected a parliament that
acted as the Constitutional Assembly. Rwanda elected a legislative
assembly that itself then elected a Constitutional Commission. Both
nations sought out public opinion through a variety of channels, used
media imaginatively, and devised materials to make constitutional issues
accessible in multiple languages to their populations regardless of levels
of literacy.
The public were not involved equally at all stages of the
South African and other processes. While South Africans could follow the
progress of public negotiations up to 1994, some absolutely critical
deadlocks along the way were resolved in secret meetings. The entire
public was first invited to take part in the 1994 election, the most
conventional form of participation. But in the South African context,
where most of the population had previously been excluded on racial
grounds, this was a momentous act. Approximately 86 percent of the
population voted. The number of voters, as well as the number of
submissions to the Constitutional Assembly, confirm that the public will
participate where they see the issues and outcomes as important.
Literacy and language are only two of the factors that have
operated to exclude groups and individuals from constitution making in the
past. Participatory processes have worked to overcome these two factors as
well as racial and ethnic exclusions and have been notable in some nations
for the new participation of indigenous peoples and in most cases for the
very visible inclusion of women.
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About the Report
This report examines the role of constitution making as part
of peacemaking, particularly in divided societies, where the process of
participatory constitution making may sometimes provide a forum for
reconciling divisions, negotiating conflict, and redressing grievances.
The report analyzes recent practices of constitution making across the
globe and documents the emergence of international human rights norms that
recognize the right to public participation in changing or creating a
constitution. The author concludes with a reflection on lessons learned
and stresses the importance of process as well as outcome in evaluating
the final product.
Vivien Hart is a professor at the University of Sussex,
where she has served since 1991 as the director of the University's
Cunliffe Centre for the Study of Constitutionalism and National Identity,
an international research network involving scholars and activists from
the United Kingdom, Europe, United States, Canada, South Africa, Sri
Lanka, and Fiji. Her most recent book, Women Making Constitutions, edited
with Alexandra Dobrowolsky, is due out this fall from Palgrave Macmillan.
Hart was a senior fellow in the U.S. Institute of Peace's Jennings
Randolph Program for International Peace in 2002–2003.
The views expressed in this report do not necessarily
reflect views of the United States Institute of Peace, which does not
advocate specific policies.
Institute Library Resources
Constitution-Making Web Links
www.usip.org/library/topics/constitution.html
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