Constitutions : Actors & Activities
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InsidersThe principal actor involved in formulating a constitution is the domestic government. The constitution is typically drafted by the Constitutional Assembly, or by a constitutional drafting committee, and, more rarely, through roundtable meetings.1 This means the involvement of elected or at times appointed officials, typically from the legislature. Go to Constitution draftingAcademics, experts, and civil society can also play important roles in constitutional engineering. Academics and, to a less frequent extent, civil society are at times asked to actively engage by providing advice on constitutional issues. Civil society plays a crucial function in educating citizens on the constitution. For instance, in Cambodia, though civil society was shut out from the constitution-making process, “post-adoption of the constitution, many of these [non-governmental organizations] have taken the lead in educating others about the contents of the constitution and monitoring the implementation of the constitution.”2 Go to Civic education and public awareness on constitutions The media, particularly radio, is an important tool for the dissemination of information on constitutions. It thus represents a tool for civic education and citizen engagement. [Back to Top] OutsidersInternational organizations, including multilateral, bilateral, and international financial institutions, play a supportive role in constitutional processes. Most of their activities pertain to capacity building for constitutions. One primary activity is the provision of legal advice. For instance, the Venice Commission has been involved in interpretation of constitutional law for conflict-prone states in Eastern Europe.3 International organizations are also important funding mechanisms. For example, the United Nations (UN) Democracy Fund highlights support for constitution-related projects as one of its primary objectives.4In some contexts, the international community may be more wedded to the democratization process, and therefore to the development of a constitution. In such instances, foreign governments may become embedded in constitutional decisions. For instance, in Afghanistan and Iraq, the United States was heavily involved in the constitutional process, even in the setting of deadlines. Some peacebuilding contexts may involve transitional administrations, where the international community is actively involved in interim governance. The United Nations Transitional Administration in East Timor (UNTAET) provided human resource and material support, development, and monitoring of the Timorese Constitutional Assembly.5 Other UN agencies and bodies, including the Department of Peace Operations and the UN Development Programme, have supported civic education processes and provided materials to populations on the constitution.6 International non-governmental organizations (NGOs) support constitutions for peacebuilding purposes, for instance by providing funds to local organizations for civic education. Other agencies are involved in advocacy on constitution building. For instance, the United States Institute of Peace has produced a number of reports on the Iraqi constitutional process. Other organizations attempt to build practical tools, such as the ConstitutionNet website, in development by Interpeace and the International Institute for Democracy and Electoral Assistance (IDEA).7 [Back to Top] Key components of constitutional drafting and reformConstitutions are thought of as a necessary framework upon which to build institutions in post-conflict and other peacebuilding settings. Thus, a number of practical components make up the constitution-building process. A central decision the constitution establishes is the determination of who is comprised within this system; that is, what is the population that makes up the political community and what rights these citizens are afforded. Further, the constitution distinguishes citizen from non-citizen and enacts legislative rules, including whether the system will be presidential or parliamentary and whether it will use consociational elements or lean toward more majoritarian options. Finally, a constitution determines territorial structure and whether the state will be federalized, affording some forms of autonomy, or a unitary system.Citizenship, ethnicity, and rights of the political communityThe determination of citizenship status is typically accorded in constitutions through the provisioning of a bill of rights, and often human rights, as well as guarantees of freedom from discrimination. These features define what it means to be a citizen, how far the autonomy of citizenship is carried, and the relationship between the citizen and the state.In recent constitutional processes, “human rights and civil liberties have emerged as universal values guaranteed under international and regional treaties. . . . Many of these rights have been enshrined in Constitutions and laws in virtually all constitutional democracies around the world.”8 Many constitutions use as a premise international legal standards such as the United Nations Universal Declaration of Human Rights, as well as combinations of regional protocols (for example, the African Charter on Human and People’s Rights, the Asian Human Rights Charter, the American Convention on Human Rights, and so forth). Such determination is often enshrined in a constitution’s bill of rights, which guarantees rights afforded to citizens by the state. This document traditionally stems from the American and French revolutions as a means of upholding individual civic and political rights for elites.9 Link to human rights Constitutions have been amended, and modern ones formulated, to include these rights for all citizenry. Link to citizenship component and debate More recently, it has been noted that with rights come responsibilities. For instance, it is necessary that citizenry have the responsibility of respecting each other’s rights for those rights to stand. In February 2008, South Africa, which is considered to have the most progressive constitutional document, announced a bill of responsibilities for the youth of South Africa,10 which is to be taught in schools.11 Practically speaking, in societies deeply divided along group lines, determination of citizenship has been significantly problematic for constitutional engineering. Debates exist over how to enact plural citizenship in such contexts, the relative benefits and drawbacks of integration versus assimilation tactics for diverse cultures, ethnicities, religions, and so forth, and putting in place measures that deal with anti-discrimination and multi-culturalism. It is important to see constitutional measures dealing with these issues as seeking to find a delicate balance. Without this approach, definitions of citizenship may actually heighten calls for conflict. Go to Democratic Republic of the Congo: Ethnicity-based notions of citizenship Go to Nigeria: Federalism in the first and second republics Separation of and relationship between powersA primary feature of constitutions is their role in separating the powers of the executive, legislative, and judicial branches of government. Decisions are made on the relationship of the executive to the legislature, through a presidential or parliamentary system (or combination of the two); on the number of legislative chambers; on whether the legislature and executive are elected through more consociational or plural majority systems; and on the role and responsibility of the judiciary.Constitutions must enact the type of legislature to be used and its relationship to the executive, whether it is presidential, semi-presidential, or parliamentary. Parliamentary regimes institute a relationship of mutual dependence, whereas a pure presidential regime institutes one of mutual independence.12 A parliamentary system, based on mutual dependence, has two main tenets. First, as Cindy Skach and Alfred Stepan point out, “The chief executive power must be supported by a majority in the legislature and can fall if it receives a vote of no confidence.”13 Second, “The executive power (normally in conjunction with the head of state) has the capacity to dissolve the legislature and call for elections.”14 Thus, the success and legitimacy of the legislature and executive are intertwined. A presidential system, based on mutual independence, is also premised on two features. Primarily, Skach and Stepan demonstrate, “The legislative power has a fixed electoral mandate that is its own source of legitimacy,” and further, “The chief executive power has a fixed electoral mandate that is its own source of legitimacy.”15 Hence, in this system, the success and legitimacy of the legislature and executive are separately linked to the electorate. An intermediate option is found between parliamentary and presidential structures in semi-presidentialism. While there are some definitional debates on this notion link to key debates: parliamentary versus presidential systems, in general terms, a semi-presidential regime can be defined as “the situation where a popularly elected, fixed-term president exists alongside a prime minister and cabinet who are responsible to parliament.”16 In such a system, the president still operates independently, but some aspects of the executive, through the prime minister, are still beholden to the legislature for success and legitimacy. Unicameral or bicameral legislature Role of the judiciary
The constitution establishes the judiciary, which, when well constructed, can serve as a check on government powers. Constitutional courts best serve the rule of law where they are separate and independent from the executive and the legislature.19 These courts are instrumental in upholding the constitution, even in adversarial circumstances. For instance, according to Kirsti Samuels and Vanessa Hawkins Wyeth, “In Uganda, South Africa, Bosnia-Herzegovina and Fiji, courts with constitutional jurisdiction have sought to uphold the constitution, even ruling against the government on occasion.”20 Consociational and majoritarian electoral systemsA constitution serves an important function by enacting the way the composition of the legislature is decided upon, and how decisions are made within that legislature, in a given state. In this regard, a spectrum of possibilities exists. At one end, consociational democracy is a model based on the notion of elite bargain. At the other end, some forms of majoritarian democracy have a “winner-takes-all” approach. Interim solutions used are the alternative vote and, less frequently, the single transferable vote, which are both preferential systems.Classically, a purely consociational system has four pillars:
Conversely, a strictly majoritarian (or plurality majority) democracy, which concentrates power in the hands of the majority, is comprised of 10 features:
The typical form of majoritarian democracy is found in the first past the post (FPTP/FPP) system, in which a winning majority takes all once it has 50 plus one percent (though some plurality majority systems do not require the 50 plus one majority). A moderate legislative composition is found in preferential systems, such as through the alternative vote (AV) and the single-transferable vote (STV). AV, promoted by scholar Donald Horowitz, is a majoritarian form of preferential voting, which in practice has the same outcome as a run-off election. Where a run-off would require a second round of voting between the two most popular candidates when no one reaches the 50 plus one mark, AV preemptively considers citizens’ second choice, third choice, and so forth. Votes are redistributed from lower-ranking choices until one candidate holds a majority. In gaining that majority, the vote functions as a standard FPTP system.23 This method is supported for deeply divided societies as it encourages moderation among candidates seeking election, who must appeal to the opposition in order to garner sufficient support to gain a majority.24 Another preferential system is found in the STV, which also incorporates voters’ lower-ranking choices. To be elected, candidates must reach a quota, and multiple candidates can be elected until legislative seats are full.25 Thus, the STV functions somewhat as a proportional representation alternative to the AV or FPTP plurality majority systems. It should be noted that few countries have attempted STV structures, and so data on successes and failures is limited. Go to Constitutions: The benefits and drawbacks of consociationalism and Electoral Processes & Political Parties Devolved territorial arrangementsAn important component of a constitution is the establishment of territorial arrangements, which also play an important role in peacebuilding. A spectrum of options exists between federal and unitary states. Along this spectrum, there are varying forms of devolution that may be useful, among which asymmetrical federations and territorial autonomy can provide alternative solutions for conflict prevention or cessation of hostilities. All such territorial arrangements are enacted through constitutional statuses or guarantees.26Federalism is the most common form of territorial devolution and is generally thought to refer to the division of power among geographic sub-units. For the purposes of this sub-section, federalism may be defined as “a political organization in which the activities of government are divided between regional governments and a central government in such a way that each kind of government has some activities on which it makes final decisions.”27 Forms of Devolution Federalism “A political organization in which the activities of government are divided between regional governments and a central government in such a way that each kind of government has some activities on which it makes final decisions.” Source: Lijphart, Arend, “Consociation and Federation: Conceptual and Empirical Links,” Canadian Journal of Political Science 12, no. 3 (1979): 499–515. Asymmetrical Federalism A federation in which “one or more federal states are vested with special powers not granted to other provinces, to allow for preservation of the culture and language of its settlers.” Territorial Autonomy Asymmetric by nature, this arrangement provides devolution and special powers/authorities only to those regions contesting centralized power. Reserves These spaces “were first used by European settlers in the Americas, to isolate and dominate indigenous peoples…In recent years, however, the aspirations and historical claims of indigenous peoples have been recognized through the transformation of reserves into self-governing areas.” Local Governance This form of devolution may be enacted through decentralization, localizing power and bringing government closer to citizenry. It is unique in that it is not determined by a special constitutional status or guarantee. Source: Harris, Peter and Benjamin Reilly, Democracy and Deep-Rooted Conflict: Options for Negotiators (Stockholm: International Institute for Democracy and Electoral Assistance, 1998), 157. Unitary states, on the other hand, are those states “characterized by or constituting a form of government in which power is held by one central authority.”28 Some note that unitary states can occur in both centralized and decentralized forms. In a centralized unitary state, devolution of power is not permitted, and though the state may appoint a special representative for an area who is responsible for the distribution of state subsidies and the administration of the area or region, “such a representative is usually accountable to the central parliament, not to a regional government.”29 Meanwhile, a decentralized unitary structure “does devolve some powers to regionally elected institutions while ultimately maintaining the sovereignty of its central parliament.”30 A moderate option between full federalism and centralized unitary systems may be found in alternative measures such as asymmetrical federalism and territorial autonomy. In asymmetrical federalism, one or more federal states are granted special powers not granted to other provinces to allow for the preservation of their culture and language.31 Further, areas particularly rife with tension may be granted territorial autonomy, wherein “only one or more regions have devolved to them special powers.”32 For instance, Northern Ireland was granted territorial autonomy from the United Kingdom after many years of tension and violence between Catholic separatists and Protestant Unionists. Yet, it should be noted that the spectrum between federalism and unitary structures holds significant ambiguity. A great deal of overlap exists between federal states, alternative forms of devolution, and what some consider decentralized unitary states. Go to Case Study: Nigeria: Federalism in the first and second republics [Back to Top] Main activities surrounding constitutional processesAny constitutional process for peacebuilding involves a number of core activities, both technical engineering in nature and supportive of or related to the formulation of the document. The central activity is the drafting of the constitution itself. In addition, such a process may involve the formulation of sub-national constitutions. To support this process, international agencies are often involved in the provision of technical assistance, advice, and training. Finally, both international and domestic actors engage in civic education and public information programs in order to raise awareness in populations around the constitution and their consequent rights and roles.Constitution draftingThe main activity on constitution building is the actual drafting of the constitution. This process puts in place all of the components that make up the legal framework for a given context. These are establishment of rights and rules of citizenship; the separation of executive, legislative, and judicial powers and determination of checks and balances in this triad; the designation of an electoral system; and the arrangement of levels of power between central and local government.A constitutional body drafts constitutions. These bodies have different modalities, depending on the situation at hand. The application of these bodies is dependent on the timing of constitutional drafting; that is, whether it comes before or after elections. The first and most recommended modality is a constitutional assembly. These are normally elected, or, more rarely, appointed commissions, and generally refer to bodies established expressly for the purpose of drafting or amending a constitution. Assemblies sometimes act as quasi-legislatures during a transition period. Constitutional assemblies are encouraged by many, as they are seen as more likely to be able to engage in participatory processes than are other modalities.33 However, because they are typically elected, this may require elections to be held before the constitution can be drafted. To address this issue, one option is to host elections to a constituent assembly and mandate that body with the drafting and adoption of a constitution,34 after which new elections may be held to elect long-term officials. This possibility, it should be noted, is host to some problems when implemented. If the choice is made to proceed with the constitution making before the organization of elections, a body needs to be identified or created to bestow power onto parties capable of legitimately formulating deliberative constitutions.35 Typically, these come in the forms of constitutional committees or roundtable meetings. Unlike constitutional assemblies, they tend to reduce the participatory quality of the process.36 Constitutional committees are internal legislative committees established for the purpose of drafting, reviewing, and/or approving a new or amended constitution. They may act like other types of constitutional commissions in times of reform processes, or they may be permanent legislative mechanisms for debating and reviewing constitutional issues.37 Roundtable meetings have provided a forum in some cases for ruling officials and the opposition to draft and agree to changes in the constitution prior to the collapse of the old regime. Ruling officials are apt to participate in the face of public protests and general loss of support. Sometimes these forums involve other social actors, such as labor representatives and civic leaders. Proposed changes are typically referred for approval by the existing parliament and/or by public referendum (a vote by the entire eligible population on reforms and amendments or on a new constitution). This type of constitutional negotiation process was typical during the democratic political transition in the former Communist countries of Eastern Europe.38 There are a few alternatives to these options. For instance, some contexts rely upon “traditional” representative mechanisms. In addition, it is considered useful to engage in a subsequent stage of debate and deliberation that includes populations’ views on constitutional decisions. In some cases, “public opinion is sought before a draft is prepared, as was done in Uganda, Ethiopia, Thailand, Eritrea and Kenya, so that even if the agenda for reform has been identified in advance, it can be broadened by reference to the needs and aspirations expressed by the people.”39 Some states also require a referendum in order to ratify the constitution or pass amendments, depending on the extent of the diversity in the constitutional assembly. Where it is broadly inclusive of a range of actors and views, a referendum may be redundant.40 Generally, referenda are public; however, some states have set up more elaborate vetting measures. As Jennifer Widner points out, “In a few instances, ratification was more complicated process that required either prior approval by the executive, certification by a court (as in South Africa), or some other kind of check.”41 Technical assistance, advice, and trainingInternational organizations, a range of experts, academics, and civil society provide technical assistance as well as consultation and offer trainings on constitutional issues. The expertise on the domain, particularly in peacebuilding contexts, has considerably expanded in the last two decades. International agencies also support human resource capacity to constitutional assemblies,42 and provide legal advice on domestic constitutional law.43Civic education and public awareness on constitutionsAt a minimum, a substantial public education campaign should accompany any constitution-building process and be prioritized by donors. It should include topics such as “the basis and forms of political authority, the working of governments, and the necessity of controls and accountability, based on the theory of popular sovereignty. People should be enabled to understand their constitutional history, and encouraged to assess the past and do an audit of past governments. The education programme must enable the people to understand the nature of public power and imagine alternative forms of government, rejecting the notion of the inevitability of older systems. The process must also aim to educate the people in the values, institutions and procedures of the new constitution, and how they can participate in the affairs of the state and protect their constitutional rights.”44This is a meaningful investment when one considers that in the recent past, successful processes “have involved extensive education programs and a process of consultation and discussion. They have encouraged national debate and allowed representatives from key political and civil groups to discuss and develop a plan for the county’s political future, largely on a consensus basis.”45 In addition, international and local non-governmental and civil society organizations may be involved in the dissemination of copies of the constitutions or in translating the constitution into local languages so that populations can better understand their rights and responsibilities. For example, the National Endowment for Democracy has funded Radio Anfani in Niger, in part to support the translation of the constitution into a number of local languages.46 In Myanmar (Burma), the Chin Forum has translated and distributed a draft constitution to get information out to people and to serve as an advocacy tool to promote democratic protections in a constitution.47 Go to Public Information & Media Development and Electoral Processes & Political Parties: Voter and civic education [Back to Top] 1. UNDP, Constitution and Its Relationship to the Legislature. 2. Michele Brandt, Constitutional Assistance in Post-Conflict Countries: The UN Experience: Cambodia, East Timor and Afghanistan (New York: United Nations, 2005), 22. 3. Venice Commission, “Constitutional Assistance.” 4. United Nations Secretary-General (UNSG), “Progress Report on the Prevention of Armed Conflict,” UN Doc. A/60/891 (2006), 16. 5. Brandt, Constitutional Assistance in Post-Conflict Countries, 25. 6. Ibid. 7. International Institute for Democracy and Electoral Assistance, “Constitution Building.” 8. Autheman, Global Lessons Learned, 11. 9. Ghai and Galli, Constitution Building Processes, 8. 10. South African Government Information, “Parliamentary Media Briefing: Human Resource Development,” February 12, 2008. 11. Edwin Tsivhidzo, “South Africa: Learners to Be Taught Bill of Responsibility,” AllAfrica, February 18, 2008. 12. Cindy Skach and Alfred Stepan, “Constitutional Frameworks and Democratic Consolidation: Parliamentarianism versus Presidentialism,” World Politics 46, no. 1 (1993): 3–4. 13. Ibid. 14. Ibid. 15. Ibid. 16. Robert Elgie, “Semi-Presidentialism: Concepts, Consequences and Contesting Explanations,” Political Studies Review 2, no. 3 (2004): 316–17. 17. Jill Cottrell, Glossary of Constitutional Terms (Stockolm: International Institute for Democracy and Electoral Assistance, 2007), 88. 18. Ibid., 12. 19. Kirsti Samuels and Vanessa Hawkins Wyeth, State-Building and Constitutional Design after Conflict (New York: International Peace Academy, 2006), 9. 20. Ibid., 8. 21. Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration (New Haven, CT: Yale University Press, 1977), 31–41. 22. Rudy B. Andeweg, “Consociational Democracy,” Annual Review of Political Science 3, no. 1 (2000): 513. 23. Donald L. Horowitz, Ethnic Groups in Conflict (Berkeley, CA: University of California Press, 1985), 625. 24. Benjamin Reilly, “Electoral Systems for Divided Societies,” Journal of Democracy 13, no. 2 (2002): 158. 25. Ibid. 26. Peter Harris and Benjamin Reilly, Democracy and Deep-Rooted Conflict: Options for Negotiators (Stockholm: International Institute for Democracy and Electoral Assistance, 1998), 157. 27. Arend Lijphart, “Consociation and Federation: Conceptual and Empirical Links,” Canadian Journal of Political Science 12, no. 3 (1979): 499–515. 28. Cottrell, Glossary of Constitutional Terms, 88. 29. Open University, “The Politics of Devolution: Introduction,” Course Outline on Power, Quality, and Dissent. 30. Ibid. 31. Harris and Reilly, Democracy and Deep-Rooted Conflict, 157. 32. Ibid. 33. Ibid. 34. Ghai and Galli, Constitution Building Processes, 10. 35. UNDP, Constitution and Its Relationship to the Legislature. 36. Ibid. 37. Ibid. 38. Ibid. 39. Ibid. See also, Yash Ghai, “The Constitution Reform Process: Comparative Perspectives” (paper presented at the conference, “Toward Inclusive and Participatory Constitution Making,” Kathmandu, Nepal, August 3–4, 2004). 40. Ibid., 6. 41. Widner, “Constitution Writing in Post-Conflict Settings, 1525. 42. Brandt, Constitutional Assistance in Post-Conflict Countries. 43. Venice Commission, “Constitutional Assistance.” 44. Ghai and Galli, Constitution Building Processes, 13–14. 45. Kirsti Samuels, “Constitutional Choices and Statebuilding in Postconflict Countries,” in The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace Operations, ed. Roland Paris and Timothy D. Sisk (London: Routledge, 2008). 46. National Endowment for Democracy (NED), 2000 Grants: Africa (Washington, DC: NED, 2000). 47. Chin Forum, “Chin Forum Draft Constitution for Chinland.” |
