Constituent Assemblies

Constituent Assemblies ― Idd R.
Mandi
UNIVERSITY OF DAR ES SALAAM

UDSM SCHOOL OF LAW
Public Law Department
___________________
CONSTITUENT ASSEMBLIES
By
Idd R. Mandi
LL.B. (Hons); LL.M. (UDSM)
Lecturer
Public Law Department, UDSM School of Law
i
Constituent Assemblies ― Idd R. Mandi
Copyright Statement
This lecture titled “Constituent Assemblies” has been specifically prepared for LL.B.
and B.A. (Law Enforcement) students of the University of Dar es Salaam. It is a
copyright material protected under the Berne Convention, the Copyright and
Neighbouring Rights Act, [Cap 218 RE 2002] and other international and national
enactments, in that behalf, on intellectual property. It may not be produced by any
means, in full or in part, except for short extracts in fair dealings, for research or
private study, critical scholarly review or discourse with an acknowledgement,
without the written permission of the author.
© I.R. Mandi, April 2017
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Acknowledgments
This is one of a series of lectures that I prepared for law and law enforcement
students of the University of Dar es Salaam. Specifically, this lecture addresses
constituent assemblies, which are the most important institutions insofar as
constitution-making is concerned. Previous lectures covered other constitution-
making institutions including constitutional commissions, committees of
experts and specialised committees.
The period of two years (2012-14) for which I served as a Researcher of the
Constitutional Review Commission (popularly known as the “Warioba
Commission”) was very enlightening for me in relation to constitutional and
political issues. I returned to the University of Dar es Salaam School of Law in
early 2014. Immediately after the return, a colleague, Mr Goodluck Kiwory,
requested me to assist in teaching constitutional law especially the constitution-
making topic. I accepted the request with much reluctance knowing that a lot
of work was needed in searching and organising teaching materials. Our library
was, and still is, destitute of literature on the subject. This came as a surprise to
me as Tanzania has organised many constituent assemblies than any other East
African country. One would have expected our public and university libraries
to be stocked with sufficient materials on constitution making generally and
constituent assemblies in particular.
Thus, the first step I took was to contact Prof Yash Pal Ghai in Kenya who
generously gave me a book which has proved to be of immense help. My
colleagues, Dr Daniel Shayo and Mr Goodluck Kiwory, also helped to search
materials on the subject in an electronic form in the libraries of Universities of
Bayreuth and Konstanz in Germany and then forwarded them to me. Also, Mr
Tumaini Hayuma sent me valuable articles and books from the University of
Aberdeen in Scotland. Similarly, Mr Jaba Sharack, who is studying at Warwick
University in the United Kingdom, also did a great favour to me for generously
supplying me with a number of books. Prof Chris M. Peter gave me three
precious books. Furthermore, Mr. Paschal Kunambi (fondly known as “Chief
Kunambi”) of the University’s Library furnished me with many articles some
ii
of which he had to obtain from Cape town University in South Africa. I

sincerely thank all of them.
Many articles that I have referred in this and other lectures were shared to me
by colleagues that we arduously and closely worked together in the Warioba
Commission: Mr Humphrey Polepole, Ms Salma Maoulidi, Dr John A. Jingu,
Mr Ross Kinemo, Hon Justice Dr Adam J. Mambi, Messrs Omega Ngole,
Onorius J. Njole, Haji Omar Sumbu, Mohamed Khamis Hamad, Thadeo
Mwenempazi, Said Nzori and many others. I extend my thanks to all of them.
I was also immensely assisted by Ms Esther C. Mlingwa and Hilda Tizeba in
printing various articles sourced from various online depositories as well as
proofreading drafts. Ms Salma Maoulidi and Japhet Odhiambo (my fellow PhD
candidate) read the lecture with a critical eye. I am very grateful to them. Lastly,
but not least, I would like to extend my sincere gratitude to Mr C.K.K. Morris,
my office mate, and Prof Palamagamba J.A. Kabudi, for their inputs and
tolerance of my unending, and probably nagging, questions and phone calls in
the course of preparing these and other notes relating to constitution-making.
I.R. Mandi
9th April 2017
iii
Preface
There are so many lessons that Tanzania needs to learn from the constitutional
review process that began in 2011. The process actually began in the same year
with debate on the Constitutional Review Bill, which was passed by the
National Assembly in November 2011. However, one thing stood out: the
debate was conducted in a haphazard and panicky manner something which
was uncharacteristic of Tanzania’s political maturity. It was devoid of
articulation based on established principles and practice. Opposition political
parties and other actors constantly threatened demonstrations and mass action.
They could not articulate and base their claims on the known principles of
constitution-making or constitutional law. Likewise, the government and the
ruling party had no convincing answers to the claims apart from offering
general denials. Lack of experience was very visible.
The debate also raged on the modality of forming a commission that would
spearhead the process. The opposition and civil society organisations wanted
to appoint some members. The government on its part stressed about the
previous practice of presidential appointments of similar commissions. After
long-drawn bickering the government agreed that political parties and civil
society organisations would submit lists of proposed names from which the
President would appoint. Ultimately, the President of the United Republic and
the President of Zanzibar appointed a Commission (“the Warioba
Commission”). Its mandate was chiefly to collect people’s views and then
prepare a draft constitution. The process of collection of public views was well-
controlled, smooth and calmer. However, chaos reigned supreme when
constitutional forums (fora) were being formed. These forums were constituent
assembly-like gatherings of people’s representatives at the district level. They
were aimed at providing forums for the discussion of a draft constitution. Their
composition raised complaints, struggle and jostling based on political
partisanship and erroneous belief among some citizens that it was an occasion
to make money. This threatened to derail the legitimacy of the process which
had shown good signs of success. The Warioba Commission was caught
unprepared as it never anticipated such challenge. This again indicated that the
nation lacked experience.
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The next major step was the composition of the Constituent Assembly that
would debate the draft constitution that the Warioba Commission prepared.
Even during the debate on the Constitutional Review Bill serious
disagreements over the composition of the Assembly existed. One aspect,
however, seemed to unify the two sides. CCM and the opposition were agreed
that all Members of the Union Parliament and the House of Representatives of
Zanzibar (MPs) would take part in the assembly. Knowing that they were the
minority, the opposition pressed for inclusion of more other members drawn
outside the two houses, who would strengthen their side. At some point in time,
the law was amended in order to accommodate the opposition’s views. One
thing is notable in this connection. The opposition leaders, who were active in
the debate, never highlighted the danger of the inclusion of MPs in the
Assembly. Many of them being MPs, probably had a conflict of interest as they
wanted to participate in the Assembly. The other possibility was that they never
anticipated any problem due to inexperience. More seriously, neither the civil
society, academia, nor professional bodies like Tanganyika Law Society (TLS),
attempted to inform the people during the debate that the inclusion of MPs in
the Assembly was problematic and a grave mistake. After two years of the
process, fears began to be expressed about this problem when the Warioba
Commission released the draft constitution. It was thought that MPs would
torpedo many constitutional proposals contained in it. Again, those who
opined that MPs should have been excluded could not support their opinions
with any constitutional principle.
Subsequently, the two Presidents appointed the members of the civil society,
faith-based organisations and professional bodies who formed part of the
Assembly. It was clear that political partisanship had dictated the
appointments. Again, although the former President, Jakaya Kikwete,
appeared to be accommodative of different views and had keen interest in
broad-based consensus, his party was clearly unsupportive of him. It became
apparent that the idea that consensus-building was necessary seemed totally
unfamiliar to many CCM operatives. Before the Assembly began its session the
debate about the extent and nature of the Assembly’s powers was reignited.
Many people feared that the Assembly would totally overhaul the draft
constitution, which enjoyed popular support to a great extent. It was claimed
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that the Assembly had no power to “fundamentally change” the draft. On the
other side, some members of the Assembly expressed their opinion that they
had not only power to change the draft but also to “overhaul it.” At least two
petitions were filed in the High Court asking it to interpret the law and clarify
on the powers of the Assembly. Specifically, the petitioners wanted a
declaration that the Assembly had no power to “substantially change” the draft
but it had only the powers to “modify it.” The efforts to protect the draft from
the Assembly failed as the High Court dismissed the petitions. The debate on
the powers of the Assembly also underlined the fact that there were neither
guiding constitutional principles nor literature on the subject.
Furthermore, the Assembly began its session by making its standing orders. In
doing this, the Assembly was visibly divided on party lines as unnecessary
wrangles dominated the debate. No enough efforts were taken to unify the
Assembly. To rub salt in the wound, when he addressed the Assembly, Mr.
Jakaya Kikwete aligned himself with his party. It became clear that he had at
last decided to ditch the process that he initiated and supported all along. As
Prof Sherriff said, after the President’s speech the members’ spirit of working
together for the nation’s good was thrown overboard.1 From thereon the
process lacked neutral leadership and consensus failed miserably. The debate
that followed was chaotic, noisy and members spent much of the time trading
insults. Some members affiliated to the opposition boycotted the Assembly’s
proceedings. Those who remained behind went on to prepare the draft which
awaits a referendum. It is clear that the public opinion is against the draft. Even
if it is adopted claims for a new constitution will persist.
Generally speaking, the process was marred by anxiety, indecision, ignorance

of the guiding principles and practical inexperience. It exhibited the same
partisan and divisive politics that are characteristic of elections. It was not well-
understood that in constitution-making the nation must be united and it has to
raise beyond the narrow confines of partisan politics. Several actors committed
many mistakes along the way. Too often the government rode the roughshod
over the voices that deserved to be listened. This was hugely baffling in that
1Prof Abdul Sheriff, who served as a member of the Assembly, made this statement at a Seminar that
was organised by members of the Warioba Commission at White Sands Hotel on 28 th June 2014.
vi
this country has made new constitutions frequently than any other state in East
Africa. On seven different occasions the country made new constitutions:
1961(Tanganyika), 1962 (Tanganyika), 1963 (Zanzibar), 1965 (Tanzania), 1977
(Tanzania), 1979 (Zanzibar) and 1984 (Zanzibar). This alone indicates that
people from other countries should be flocking to Tanzania in order to learn
about constitution-making. However, the reality showed Tanzania was the one
that ought to learn. It is understandable that the present economic, social and
political circumstances are different from those that existed in the past. But still
the nation should have at least accumulated certain experience that could have
enabled her to handle the process better than she did.
Equally baffling is lack of written records about constituent assemblies

although Tanzania held constituent assemblies in 1962 and 1977. Not much of
the present population understand these important historical events of our
country. In his works on different subjects, Prof. Issa G. Shivji tried to hint about
constituent assemblies only in passim. Overall, the literature on constituent
assemblies and constitution-making generally is overly wanting. It is opined
that the country’s higher learning institutions, especially universities, have a
bounden duty to conduct research, write and teach our youth about
constitution-making and related institutions like constituent assemblies. Our
future political leaders and ordinary citizens alike have to be oriented to the art
of managing tumultuous political processes like constitution-making. The
nation needs to grow. It has to conduct its political and other affairs in
accordance with contemporary demands but in the light of the past experience.
Mistakes committed in the past can be avoided if they are known. It was on the
basis of this thinking that this brief lecture on constituent assemblies was
prepared. This short lecture is a general one. It does not focus on Tanzania
particularly. It rather attempts to discuss the practice of various states in
relation to constituent assemblies with a view to helping students to have at
least the basic understanding on their nature, functions and principles that
govern their existence and operations. It would be a serious mistake for
students to think that this lecture is sufficient in itself. It is not. They must
continue to research and read other sources of information.
I.R. Mandi
9th April 2017
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CONSTITUENT ASSEMBLIES
Overview and Nomenclature

For over two and a half centuries, the world’s history about constitution-making
has been dominated by “constituent assemblies.” No other institution has been
frequently associated with the making of state constitutions as a constituent
assembly. For this reason, more pages are dedicated to constituent assemblies than
other constitution-making institutions. At the outset, it needs to be observed that
the phrase “constituent assembly” traces its origin to France.1 Actually, it is
derived from a French phrase, Assemblée constituante (that is constituent assembly).
According to Brandt et al., a constituent assembly “refers to a body representing
the people that is vested solely (or mainly) with “constituent power.””2 In other
words, it is a representative institution whose main function is to exercise one of
the important powers in a state, the power to make a constitution (the constituent
power). Carroll and English offer a similar description but they note further that
“Specific mandates given to such bodies differ from one country to another.”3
Some constituent assemblies like the French National Constituent Assembly (1789-
91), the Prussian Constituent Assembly (the Frankfurt Assembly) (1848-9), the
Indian Constituent Assembly (1946-9) also exercised legislative powers as
parliaments.4 But, the main focus of this lecture is constitution-making. Broadly
speaking, in many democratic and republican states, the power to make a
constitution (constituent power) belongs to the sovereign (the people). However,
there is no enough and convenient venue where all citizens of a state can meet and
discuss about the framework of their government. On this basis, it becomes
necessary to form a body of a few individuals for the purpose of exercising
constituent power, not on their own accord, but on behalf of the people.
1 Markus Böckenförde, et al., (2011), A Practical Guide to Constitution Building, International IDEA,
Stockholm, p.14.
2 Michele Brandt, et al., (2011), Constitution-making and Reform: Options for the Process, Interpeace, USA,
p.233.
3 John J. Carroll and Arthur English, “Constitution-Making Roles & Delegate Behaviour,” in Polity, Vol.
17, No. 3 (Spring, 1985), pp. 586-594, p.594.

4 See, Jon Elster, "The Optimal Design of a Constituent Assembly" on
http://download2.cerimes.fr/canalu/documents/cerimes/UPL55488_Elster.pdf, accessed on 13th

October 2016.
1
The practice of states indicates great nomenclatural diversity. While many nations
have named their constitution-making bodies as “constituent assembly,” others
have chosen different names. Some examples may be given here: “constitutional
convention” (USA in 1787), “the representative legislative committee”
(Switzerland in 1848), “the representative assembly “(Egypt in 1866), “the
constitutional assembly,” [South Africa (1994-6), Sri Lanka (2014)]; “constitutional
conference” [Canada (1864-6), Malaya (1948), Nigeria (1953, 1954, 1957, 1958, 1994-
5, and 2014), Singapore (1963), Benin (1990), Gabon (1990), Mali (1991), the
Democratic Republic of Congo (1991-2), and Kenya (2004)];1 “the Parliamentary
Council” (Germany in 1948-9); “the Constitutional Drafting Assembly” (Libya in
2014)2; “the National Consultative Assembly” (Ghana in 1991); and the
“Constitutional Council” (Iceland in 2011).3
The name “constitutional conference” has been used in two different senses. In one
sense, it connotes an ordinary or formal representative constitution-making body.
The 2003-4 National Constitutional Conference in Kenya is quintessential in this
connection. In another sense, it refers to political meetings intended to serve as
political forums for constitutional negotiations. To make the second sense clear,
part of the British colonial history becomes relevant. Somewhat paradoxically,
Britain has no written constitution but it has written many constitutions than any
other nation in history. As it decolonised, Britain prepared more than 500
constitutions for various colonies between 1920s and 1980s.4 Many of such
constitutions were manufactured at Lancaster House in London, which became the
most prolific constitutional factory in the 20th Century, so to speak. Thus, the
delegates of the African, Asian and Caribbean British colonies that pressed for
independence met the British delegations in London for negotiations regarding
independence and new constitution.5 For instance, the delegates of all East African
British colonies except Tanganyika met at the Lancaster House in London: Uganda
1 See for instance, Böckenförde, et al., op. cit., p.14; Brandt, et al., op. cit., p.250; and Patrick Fafard and
Darrel Robert Reid, (1991), Constituent Assemblies: A Comparative Survey, IIGR, Queen's University,
Ontario, p. 6.
2 See, Lorianne Updike Toler, “Mapping the constitutional process,” in Cambridge Journal of International
and Comparative Law, 2014, pp. 1260-1286, at p.1260.

3 See, Katrin Oddsdottir, “Iceland: the birth of the world's first crowd-sourced constitution?” in
Cambridge Journal of International and Comparative Law, 2014, pp.1207-1220, at p.1207.

4 Mark Anstey, (2008), Managing the Change: Negotiating Conflict, 3rd edn, JUTA, Cape Town, pp.314.
5 See, Guy Powles, “Constitution Making in Western Samoa,” in The Indian Journal of Political Science,
Vol. 22, No. 3 (1961), pp. 179-194, p.180.
2
(September – October, 1961), Kenya (January 19601, February 19622, and December
19633), and Zanzibar (April 1962).4
To make sure that everything was under their control, the British lawyers were the
ones who exclusively handled the task of drafting constitutions.5 In January 1960,
Kenyan nationalists hatched an ingenious plan that was meant to break the British
dominance in the course of negotiations and their monopoly in drafting. Through
Tom Mboya, they sought assistance of Thurgood Marshall, a famous Black-
American lawyer and civil rights activist, who agreed to advise his Kenyan
brothers in the negotiations and drafting a constitution.6 He arrived in Nairobi and
then they left together for London.7 After learning that the Kenyan delegation had
arrived with “Lionel Messi” among their ranks, so to speak, the British were
“surprised and astounded.”8 Long discussions then ensued as to whether
Marshall, who was neither a British nor Kenyan, had the right to attend the
meeting. Kenyan delegates remained resolute and insisted on his attendance.9 At
last the British gave in and he was allowed to enter the factory of constitutions (that
is Lancaster House).10 One of the advice that Marshall proffered to Kenyans was,
“'You've got to have a Bill of Rights in that constitution.'”11 However, the British
were not prepared to be defeated comprehensively ― they succeeded to exclude
Koinanage wa Mbiyu from attending the conference.12 Mbiyu was one of the chief
architects of the Mau Mau rebellion against the British colonial rule (1952-1960).13
1 Mary L. Dudziak, “Working toward Democracy: Thurgood Marshall and the Constitution of Kenya”,
in Duke Law Journal, Vol. 56, No. 3 (Dec., 2006), pp. 721-780, at p. 745.
2 See, David M. Anderson, “Yours in Struggle for Majimbo'. Nationalism and the Party Politics of
Decolonization in Kenya, 1955-64,” in Journal of Contemporary History, Vol. 40, No. 3 (Jul., 2005), pp. 547-
564, at p.554.
3 See, Mateo Taussig-Rubbo, “From the ‘Stranger King’ to the ‘Stranger Constitution’: Domesticating
Sovereignty in Kenya,” in Constellations, Vol.19, No. 2, 2012, pp.246-266 at p. 252.

4 See, A.S.L. Ramadhani, “The Political Situation of Zanzibar: Institutional and Legal Framework,” in
T.L. Malyamkono (ed.), (2000), The Political Plight of Zanzibar, Tema Publishers Ltd, Dar es Salaam,
pp.55-70, at p.61.
5 Powles, op. cit., p.180.
6 Dudziak, op. cit., p.723. Thurgood Marshall became the Solicitor-General in 1965 and then the first
Black-American Justice of the American Supreme Court in 1967.

7 Ibid., p.737.
8 Ibid., p. 746.
9 Ibid., p.748.
10 Ibid.
11 Ibid., p.737.
12 Ibid., p.748.
13 Ibid.,
3
Why such meetings had to be held in London? Kanyeihamba attempts to answer

this question.1 According to him, the reasons were both logistical and political.2
Obviously, the British wanted to impose their constitutional system on their
colonies as well as protecting their vested interests. Describing the 1963 Kenyan
Constitution as a “colonial document”3, the British political economist and activist,
Lionel Cliffe, noted that it was “produced in London with the Kenya delegates
under pressure to accept the formula, underwriting property rights, enshrining the
centralised authoritarianism of the (settler-) colonial state.”4
Interestingly, as Kanyeihamba states, being a footballing nation, the British

understood quite well the benefits attainable from playing at the home ground.5
They therefore always insisted on such meetings to be held in London. While in
London, the British would “throw lavish cocktail parties” to the delegates and then
take them around to see the sparkling and “magnificent buildings” of the British
government including the Palace of Westminster and the Buckingham Palace.6
After such sojourn coupled with the British generosity, as he says, the British magic
would have worked as the delegates would mentally conclude that the
Westminster model (that is parliamentary system) was the best form of
government under the Sun!7 Thus, all independence constitutions of the former
British colonies were, as McAuslan describes them, “standard form
constitutions.”8 Among other things, they established uniform governmental
institutions like the office of the Governor, who represented the Queen, the Prime
Minister, who was drawn from the party commanding the majority in the National
Assembly, ministers who had to be appointed from the National Assembly, etc.
In Tanganyika (now part of Tanzania), the process was slightly different. Probably
being aware of the dangers of the “away ground,” Nyerere refused to go to
1 G.W. Kanyeihamba, (2010), Constitutional and Political History of Uganda: From 1894 to the Present, 2nd
edn, LawAfrica, Kampala, pp.50-55.
2 Ibid., p.51.
3 Lionel Cliffe, “Kenya's Constitutional Reform Referendum”, in Review of African Political Economy, Vol.
33, No. 107, State, Class & Civil Society in Africa (Mar., 2006), pp. 141-142, at p.141.
4 Ibid.
5 Ibid., p.52.
6 Ibid.
7 Ibid.
8 J.P.W.B. McAuslan, “The Republican Constitution of Tanganyika”, in The International and Comparative
Law Quarterly, Vol. 13, No. 2 (Apr., 1964), pp. 502-573, at p.502.
4
London.1 Instead, the constitutional conference for Tanganyika was held at

Karimjee Hall in Dar es Salaam on 27th and 28th March 1961.2 As it turned out,
Nyerere’s refusal did not bring forth much dividends since the British were,
nonetheless, able to impose their Westminster system of government. It took a year
after independence for Nyerere to dismantle the British-styled constitution. Its
substitute, the 1962 Republican Constitution, ushered in the hybrid presidential
system based on the 1787 American and 1958 French Constitutions. Thus, such
brief meetings were referred to as “constitutional conferences.” They were not
organised according to the law and the delegates were not elected by the people
but drawn from active political actors at the time. So much about constitutional
conferences.
Another phrase, “constitutional convention,” also deserves some explanation. It is

highly connected with the American political history. Like the French National
Constituent Assembly (1789-91), the American Constitutional Convention, which
was held in Philadelphia in 1787, has been enormously influential. Of course, the
two had something in common: they both resulted from political crises. While the
French National Constituent Assembly resulted from a revolution, the American
Constitutional Convention was the consequence of an impending break-up of the
Union of American states, which was styled as “Confederation.” It was thus called
for the purposes of amending the Articles of the Confederation, 1781, in order to
resuscitate the faltering Union.3 Actually, almost all the constituent states of the
USA made their individual state constitutions through constitutional conventions.
The practice of summoning conventions for the purpose of revising and amending
entrenched constitutions is well-established in all states that constitute the
American Federation.
The phrase “constitutional convention” is not understood in the same sense on

both sides of the Atlantic. While in America it is generally associated with a
representative body charged with the function of constitution-making, in the UK
it means, according to Dicey, “rules which although they regulate the conduct of
the several members of the sovereign power, of the ministers or the other officials,
1 Issa G. Shivji et al., (eds.), (2004), Constitutional and Legal System of Tanzania: A Civics Sourcebook, Mkuki
na Nyota Publishers, Dar es Salaam, p.48.
2 Ibid.
3 See, David Bernstein, “The Constitutional Convention: Facts and Figures”, in The History Teacher, Vol.
21, No. 1 (Nov., 1987), pp. 11-19, at p.11.
5
are not in reality laws at all since they are not enforced by the courts.”1 Such
unwritten rules are a feature of the unwritten British Constitution.2 This lecture
uses the phrase in the former sense, that is, to mean a constituent assembly, a
constitution-making body, but not rules.
Another phrase, which has gained substantial prominence, is “consultative

assembly.” It was used in Morocco (1956), the former North Yemen (1970), and
Ghana (1991). The Constitution of Kenya Review Act, 1997, initially designated the
Kenyan Constituent Assembly as “the National Constitutional Consultative
Forum”3 but the legislation was subsequently amended and this designation was
changed to “the National Constitutional Conference.”4
It has to be pointed out that of all these names “constituent assembly” stands out
as the most famous one as it has been frequently adopted by many nations than
any other nomenclature. Undoubtedly, its fame is linked to the French National
Constituent Assembly (1789-91). Being a consequence of the French revolution, it
has had enormous influence in Europe and beyond. Many countries influenced by
French constitutional traditions have designated their constitution-making
institution as “constituent assemblies.” Many European countries, former French
colonies, and almost all Latin American countries at one time or the other have
styled their constitution-making bodies in the name of “constituent assembly.”5
For instance, some of the European states that have employed the phrase include
Norway (1814); Denmark (1848-9); Luxembourg (1848, 1918-9); Romania (1866);
Bulgaria (1879); Portugal (1911, 1975-6), Russia (1918); and Italy (1946-8). In Latin
America, for instance, many states constituent assemblies in recent years: Peru
(1978-9; 1992-3); El Salvador (1982-3); Nicaragua (1984-5); Brazil (1987-8);
1 Cited in Alex Carroll, (2009), Constitutional and Administrative Law, 4th edn, Pearson Education Ltd,
Essex, p.56.
2 Joseph Jaconelli, “Do Constitutional Conventions Bind?” in The Cambridge Law Journal, Vol. 64, No. 1
(Mar., 2005), pp. 149-176, at p.149. The author also gives examples of constitutional conventions in the
United Kingdom at the same page: The Prime Minister is appointed by the Monarch from the party
that commands the majority in the House of Commons; the government has to resign once it is defeated
in the vote of no confidence; judicial officers must refrain from participating in party political debate;
ministers should resign when they become a subject of public scandal or accused of mismanagement
of their departments.
3 See, section 16A of the Constitution of Kenya Review Act, 1997.
4 See, section 27(1) (b) of the Constitution of Kenya Review Act, 1997 (as amended in 2001).
5 See for instance, Markus Böckenförde, et al., (2011), A Practical Guide to Constitution Building,
International IDEA, Stockholm, p.14.
6
Colombia (1990-1); Paraguay (1992); Venezuela (1999-2000), Bolivia (2006-9); and

Ecuador (2007-8).1 In Asia India (1946-9); Pakistan (1947-56); Turkey (1961);
Bangladesh (1972) and Nepal (2008-2012) have styled their constitution-making
bodies as “constituent assemblies.” Some of the African countries that established
constituent assemblies designated as such include Libya (1950), Tunisia (1956,
2011), Algeria (1962), Nigeria (1979 and 1999), Tanzania (1962, 1977 and 2014),
Namibia (1989-90), Uganda (1967 and 1994-5), and Ethiopia (1994), just to mention
a few examples. On the basis of the foregoing, unless the context requires the use
of a different name, it is the name “constituent assembly” which is preferred to
represent all other names.
Brief History
It is worth inquiring the history of constituent assemblies, albeit broadly. It is said
the first constituent assembly recorded in the history of constitution-making was
held in England.2 It was the assembly that adopted the so-called Magna Carta (the
Great Charter) in 12153; the assembly is also credited for having adopted “the first
written constitution-like document.”4 Braxton described it as “the first faint
suggestion in England of a written constitution.”5 But this theory is not free of
challenge. Other accounts have it that roughly between 650 and 550 BC, the Greek
City states enacted constitutions and Solon of Athens is recorded to have single-
handedly drafted one of the most successful constitutions in history. 6 Thus, the
theory that the Magna Carta was the first written constitution in the world might
not augur well with the reality. This inquiry, however, focuses on constituent
assemblies, not written constitutions.
1
See, Alissandra T. Stoyan, (2014), Constituent Assemblies, Presidential Majorities and Democracy in
Contemporary Latin America, A PhD Thesis submitted to the University of North Carolina, p.76.
2 A. Caperton Braxton, “Powers of Conventions,” The Virginia Law Register, Vol. 7, No. 2 (Jun., 1901),
pp. 79-99 at p. 82. See also Roger Sherman Hoar, (1917), Constitutional Conventions: Their Nature, Powers,
and Limitations, Little, Brown, and Co., Boston, at p.2.
3 R.C. Van Caenegem, “Constitutional history: chance or grand design?” in The European Constitutional
Law Review (2009), at pp.450-451, at p.450.

4 See, Jennifer Widner, “Constitution Writing in Post-conflict Settings: An Overview”, in William & Mary
Law Review, Vol.49; Issue 4, pp.1513- 1541, at p. 1515-1516.

5 Braxton, “Powers of Conventions,” op. cit,.p.82.
6 Adriaan Lanni and Adrian Vermuele, “Constitutional Design in the Ancient World”, Stanford Law
Review, Vol.64, 2012, pp.907-949, at pp.911-12. See, Jon Elster, "The Optimal Design of a Constituent
Assembly" on
October 2016.
7
Back to Magna Carta, it was forced on King John of England by the rebellious
landholders (Barons) who objected excessive taxation by the tyrannical King.1 The
King had raised tax rates in order to fill the state coffers emptied by his war against
the French King that ended in a disastrous defeat.2 The revolting Barons matched
to meet the King; they actually met him at the place known as “Runnymede”3,
32km west of central London. His army being depleted by the catastrophic Anglo-
French war, the King was forced to sign the Magna Carta, the document that
curtailed his powers.4 It is said, within two months after signing it King John
complained to Pope Innocent in Rome “that his divine right to rule was infringed
upon by the barons.”5 Specifically, he wanted the Pope to condemn the subjects
who were disobeying “an obedient son of the Church,” as he now chose to call
himself.6 Consequently, the Pope granted the supplication and declared the Magna
Carta null and void through the Popeʼs Papal Bull, issued on 24th August 1215,
which read: “By violence and fear he [King John] was forced to accept an
agreement which is not only shameful and degrading but also illegal and
unjust…That charter we declare to be null and void forever.”7 According to
Kasper, this led the Barons, assisted by Prince Louis of France, to wage a civil war
against King John.8 The Magna Carta was subsequently reinstated when he and
Pope Innocent had died.9 It was the brief meeting between the revolting Barons
and King John, which is considered in the English history as the first constituent
assembly. The resulting document is also considered to be the earliest efforts to
restrict the powers of government. It is a document that is greatly revered in
Britain. In 1956, the judge who dominated the English jurisprudence in the 20 th
century, Lord Denning, described the Magna Carta as “the greatest constitutional
document of all times ― the foundation of the freedom of the individual against
1 See, also Paul Latimer, “Rebellion in south-western England and the Welsh marches, 1215–17”, in
Historical Research, Vol. 80, No. 208, 2007, pp.187-224.
2 See, Eric T. Kasper, “The Influence of Magna Carta in Limiting Executive Power in the War on Terror”
Political Science Quarterly, 2011-12, Vol. 126 No. 4, pp. 547-578. See also Paul Latimer, “Rebellion in
south-western England and the Welsh marches, 1215–17”, in Historical Research, Vol. 80, No. 208, 2007,
pp.187-224.
3 See, Kasper, op. cit., p. 547.
4 Ibid.
5 Ibid., p. 550.
6
Danziger and Gillingham, (2003), 1215: The Year of Magna Carta, Simon & Schuster, London, p.246.
7 Ibid., p. 551.
8 Ibid.
9 Ibid.
8
the arbitrary authority of the despot.”1 In this connection, Judith Pryor tells about
an exhibition, which she saw in London. It read:
Magna Carta that you will see today was written . . .

Before women had the vote (1928)
Before all men had the vote (1918)
Before the United States declared independence (1776)
Before the Glorious Revolution (1688)
Before King Charles lost his head (1649)
………..
Long before Constitutions were written down.2
Interestingly, as she says, the exhibition ended with the following statement: “But
in Britain there is no written constitution. Our laws have developed through the
centuries reflecting the aspirations of each generation. Our constitution has
evolved over more than 800 years, refining the rights and freedoms that we now
enjoy.”3 Undoubtedly, this statement was intended to inform the world why the
British people have, rather uniquely, decided to pursue their political life without
a “secular scripture” or “political scripture” (a written constitution).
It stands to be argued that regardless of the influence and the values that are
attached to the Magna Carta, the meeting from which it resulted cannot be regarded
as a constituent assembly properly so-called. As to its contents, Caenegem argues,
“Magna Carta says nothing about the organs of the state, but contains a rather
disconnected set of articles which ban various arbitrary practices of the monarch,
who granted the Charter only under duress, as he faced a superior rebellious
force.”4 It was, therefore, “a peace treaty”, as Rohde5 calls it, rather than a
constitution. It would thus appear that the meeting was an occasion for striking an
armistice or peace accord between the rebellious barons or nobles and the King.
The barons did not represent the people generally but fought for their own
interests. It resulted from a sectional rather than a popular uprising. Furthermore,
it has never been suggested that it exercised the constituent power, that is, the
1 Danziger and Gillingham, op. cit., p.268.

2 Judith Pryor, “Unwritten Constitutions?: British exceptionalism and New Zealand equivocation”, in
European Journal of English Studies, Vol. 11, No. 1 April 2007, pp. 79 – 92, at pp.79-80.
3 Ibid., p.80.
4 R.C. Van Caenegem, “Constitutional history: chance or grand design?” in The European Constitutional
Law Review (2009), at pp.450-451, at p.450.

5 Stephen F. Rohde, (2005), Freedom of Assembly, Infobase Publishing, New York, p.1
9
power to change the framework of government. If it was anything resembling a

constituent assembly, then probably it was something more akin to a revolutionary
constituent assembly, which is discussed below.
The institution of constituent assembly as understood today developed in

America. There, it was described by Jameson, “as one of the most important and
most characteristic of the political institutions of the United States.”1 As Hoar
asserts, what happened in America was far beyond the Runnymede meeting and
the Magna Carta.2 He also describes the way constituent assemblies developed in
America. It is to be remembered that the British ruled the thirteen American
colonies3 through written instruments in the name of “Charters.”4 Major
constitutional changes began to occur amid the American Revolutionary war
(1775—83) in which the thirteen colonies, assisted by France, fought for their
independence from Britain which they jointly declared in 1776. 5 So upon the
declaration of independence, many charters were suspended as the colonies had,
as it was interestingly claimed, “reverted to the state of nature”6, the claim which
has been castigated by Braxton as an “idle dream of the early theorists.”7 Of course,
this claim was based on the 17th century Hobbesian political theory that in a state
of nature there was neither government, nor law; instead there was a “war of every
man against every man”8 and life was “solitary, poore9, nasty, brutish and short.”10
To elevate themselves from the crude state of nature to constitutional polities, each
colony (state) began to make its own constitution. Many states did so through their
legislative bodies.11 However, it was in Massachusetts and New Hampshire where
1 John Alexander Jameson, (1869), A Treatise on the Principles of American Constitutional Law and
Legislation: The Constitutional Convention; its History, Powers, and Modes of Proceeding, 2nd Edn, E.B. Myers
and Company, Chicago, p. 1.
2 Hoar, op. cit., p.2.
3 Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts Bay, Maryland, South
Carolina, New Hampshire, Virginia, New York, North Carolina, and Rhode Island.
5 See, Allan Kulikoff, “Revolutionary Violence and the Origins of American Democracy”, in The Journal
of The Historical Society II: 2 Spring 2002, pp.229-260.

6 Hoar, op. cit. p.1.
7 Braxton (1901), p. 87.
8 Cited in Daniel Eggers, “Hobbes and Game Theory Revisited: Zero-Sum Games in the State of
Nature”, in The Southern Journal of Philosophy, Vo. 49, No. 3, September 2011, pp.193-226, at p.193.
9 The word “poor” was spelled as “poore” in the 17th century.
10 Cited in Paul Lermack, “The Constitution is the Social Contract so it must be a Contract . . . Right? A
Critique of Originalism as Interpretive Method”, in William Mitchell Law Review, 2007, Vol. 33, Issue No
4, pp.1402- 1445, at p. 1412.
10
the idea of a modern constituent assembly emerged.1 This happened even before
the culmination of the war. Massachusetts established a constitutional assembly in
1780. Before this year, its 1777-78 legislature had submitted a draft constitution to
the people for a popular vote but it “was indignantly rejected by the electorate,
because they resented the legislature's assumption that it could call a convention
without first obtaining an authorization from the people.”2 Commenting on this
rejection, Lord Arthur said:
The material factor which defeated the constitution was the widespread
belief that the only convention which could stand for all the people and
best define its rights and determine its form of government, was a
convention consisting of delegates to whom the powers of the people
were delegated for the sole purpose of framing a constitution, and not a
body of representatives entrusted at the same time with other duties.3
Since then, the idea of representatives chosen “for that particular purpose”
remains a key feature in the philosophy of constitution-making. The
embarrassed legislature was then compelled to organise a referendum asking the
voters whether they wanted a constitution and whether they would authorise the
legislature to call a constitutional convention.4 After it obtained authority, the
convention was called; it drafted the Constitution which was adopted in 1780.5
This also highlighted another idea: the legislature or any governmental institution
cannot make a constitution without consulting the people.
For its part, New Hampshire followed a path similar to that of Massachusetts. Its
legislature adopted a temporary constitution on 5th January, 1776.6 Some people
objected so vehemently that a committee had to be established for the purpose of
calming them down by telling them that it was only a stopgap.7 In 1777, delegates
of various towns met at a town called Hanover and adopted a resolution that “a
permanent plan of government should be framed by a convention convened solely
for that purpose.”8 In February 1778, a popular vote was held to authorise a
1 Ibid., p.4.
2 Ibid., p. 5.
3 Lord Arthur in II “Massachusetts Law Quarterly," 1, 5; cf. Journal, Mass. Conv., 1779-1780, p. 225. Cited
in Hoar, op. cit., pp.6-7.

4 Hoar, op. cit., p. 5.
5 Ibid.
6 Ibid., p. 6.
7 Ibid.
8 Ibid.
11
convention to be summoned.1 But the people rejected a constitution drafted by this

convention when it was submitted to them.2 The exercise was repeated in 1781 but
the draft was rejected again.3 It had to be revised and submitted to another
referendum in 1783 in which it was approved at last.4 By its nature, this change
was revolutionary. It essentially shifted constitution-making powers from the
legislature to the people.
Thus, the procedure that was developed in Massachusetts and then followed in
New Hampshire is the one that sired the constituent assembly in its current shape.
Out of the procedure at least four principles emerged. Firstly, Parliament (the
legislature) is not a proper forum for making a constitution. A constitution should
be adopted by a body specifically constituted for that particular purpose or, to use
the language of Jameson, “by a body for that purpose specially chosen and
commissioned.”5 This principle has survived the exigencies of time. For instance,
in Marshall v. Canada6, the United Nations Human Rights Committee (UNHRC)
partly held in 1986 that participation in a constitutional conference was an exercise
of the right to public affairs which “is the task of representatives of the people,
elected for that purpose.”7 The principle is borne out of the reality that people
cannot control the government or protect their rights if they permit the same
people in power to exercise constituent power. In this regard, this is what Dodd
says about people’s refusal of the constitution made by Parliament in
Massachusetts:
That the Supreme Legislative, either in their proper capacity, or in Joint

Committee, are by no means a body proper to form and establish a
Constitution, or form of Government; for reasons following: first,
because we conceive that a Constitution in its proper idea intends a
system of principles established to secure the subject, in the possession
and enjoyment of their rights and privileges, against any encroachments
of the governing part, second, because the same body that forms a
constitution have of consequence a power to alter it, third, because a
constitution alterable by the Supreme Legislative is no security at all to
1 Ibid.
2 Ibid.
3 Ibid.
4 Ibid.
5 Jameson, (1869), op. cit., p. 1.
6 Communication No. 205/l986, U.N. Doc. CCPR/C/43/D/205/l986 at 40 (1991).
7 See, United Nations, (2004), Selected Decisions of the Human Rights Committee under The Optional Protocol,
Vol.4, Fortieth to forty-sixth sessions (October 1990 - October 1992), p.42.
12
the subject against any encroachment of the governing part on any, or on

all of their rights and privileges.1
Secondly, Parliament cannot undertake any action in relation to a constitution

unless it has obtained a specific authority from the people. Thirdly, the body that
makes a constitution must be composed of the representatives of the people. Such
representatives can exercise the constituent power if permitted to do so by the
people. Lastly, a constituent assembly (or constitutional convention) is an agent of
the people. Its work must be submitted to the people for approval or ratification.
It follows that the 1787 US Federal Constitution Convention was founded on the
experience of Massachusetts and New Hampshire conventions. However, despite
its global eminence, Hoar claims it was not a proper constitutional convention. In
his words, “This convention was really a diplomatic treaty-making body, rather
than a constitutional convention in the purest sense of the term.”2 It was not called
for the purpose of making a constitution but rather consideration of the problems
of the Union and possible revision of the Articles of the Confederation, 1781.3
Nevertheless, without authority, the meeting resolved to make a new constitution
that was later submitted to states constituting the Union for ratification. 4 The
ratification through state constitutional conventions followed the procedure that
was established in Massachusetts and New Hampshire. Thus, the practice that
began in Massachusetts and then imitated in New Hampshire, and partly copied
by the 1787 continental convention crystallised itself into a global practice. Not
only it became “one of the most important and most characteristic of the political
institutions of the United States”5, as Jameson holds, but it crossed the Atlantic
Ocean to establish itself in Europe.
As regards Europe, the French National Constituent Assembly (1789-91) followed

the American practice. A constitution was to be made by a separate body called
“constituent assembly”, not by an ordinary Parliament (the legislature). Also, in
keeping with the traditions that were established in America, constituent
assemblies had to be authorised by the people. For example, the 1848 French
Constituent Assembly was preceded by elections of its members in which 7 million
1 Cited in Hoar, op. cit., p.7.

2 Ibid., p. 8.
3 Jacqueline Kanovitz, (2000), Constitutional Law, 12th edn, Lexis Nexis, United States, p. 4.
4 Ibid., p. 4.
5 Jameson, (1869), op. cit., p. 1.
13
Frenchmen voted.1 This trend was followed in Prussia (part of modern day
Germany) as delegates to the 1848-9 Frankfurt Assembly were popularly elected.2
Similarly, in November 1917 over 40 million Russians went to polls to elect their
deputies to the Russian Constituent Assembly “on the basis of universal, equal,
direct, and secret suffrage.”3 Of course, many European nations held constituent
assemblies subsequently. It is to be remembered that, previously, the French
National Constituent Assembly (1789-91) and the National Convention (1792) had
abolished feudalism and later the monarchical system during the wave of
revolution. They introduced a “system based on equal opportunity, freedom of
speech, popular sovereignty and representative government.”4 Undoubtedly,
these sweeping and historical changes gave the French constitution-making,
through constituent assemblies, more fame and influence than the American
Constitutional Convention.
Nature and Classification of Constituent Assemblies

The Nature
Principally, as noted above, constituent assemblies are representative bodies
constituted for the purpose of exercising the most fundamental power in a state ―
constituent power. It is a principle that “Constitutions can be rightfully formed
and established only by the people over whom they are to be put in force.” 5 But
the challenge is, as noted earlier, we have nothing like a “vast plain”, as theorised
by the Enlightenment philosophers.6 A “vast plain” would presuppose a venue
where all people can meet and deliberate on their affairs and, in this case, exercise
their constituent power directly. It is from this difficulty, that is, lack of spacious
venue, where came the idea of a representative body to exercise such power on
behalf of the people. Again, as observed before, it was due to the distrust of the
institution of Parliament that a constituent assembly came into being.
1 See, Malcolm Crook, “Universal Suffrage as Counter-Revolution? Electoral Mobilisation under the
Second Republic in France, 1848–1851,” Journal of Historical Sociology, Vol. 28 No. 1 March 2015, pp.49-
66, at p.49.
2 See, Donald J. Mattheisen, “Association Voters and Parliaments in the German Revolution of 1848: An
Analysis of the Prussian Constituent Assembly” in Central European History, Vol. 5, No. 1 (Mar., 1972),
pp. 3-22.
3 William A. Dando, “A Map of the Election to the Russian Constituent Assembly of 1917,” in Slavic
Review, Vol. 25, No. 2 (Jun., 1966), pp. 314-319, at p. 314.

4 See, French Revolution, on http://www.history.com/topics/french-revolution, accessed on 19th June
2016.
5 Jameson, (1869), op. cit., p. 1.
6 Braxton, (1901), op. cit. p. 87.
14
What are the characteristics of this representative body? Bhandari, while writing
within the context of Nepal, maintains that there are four important features of a
constituent assembly.1 First, it is “a fully representational institution.”2 Second, it
is “an autonomous body with authority to develop constitutionalism and
promulgate a constitution.”3 Third, it is “a supreme body [that is] able to work
without interference of any individual or institution.”4 Fourth, it is supposed to be
“an efficient public forum for constitutional discourses.”5 It would appear that this
particular characterisation is partly based on the 2008 Nepalese Constituent
Assembly. Like the constituent assemblies of India (1946-9), Pakistan (1947-56),
Namibia (1989-90) and South Africa (1994-96), the Nepalese Constituent Assembly
(2008) was legally endowed with power to do everything: collect people’s views,
draft a constitution, debate on it and then promulgate it. However, this has not
been the common modality across the globe. Other nations such as Kenya have
used other institutions like constitutional commissions and committees of experts
that collect public opinion and then prepare draft constitutions. In any country that
espouses the doctrine of popular sovereignty and constituent power, a constituent
assembly is an agent of the people. It is supposed to work in the best interests of
the people generally. Of course, in real practice the situation could be vastly
different as stories about self-serving constitution-making abound.
Again, the characterisation of a constituent assembly as an autonomous body calls

for some comment. It is correct to state that an assembly is autonomous vis-à-vis
the organs of government. The executive or legislative branches of government
should not have opportunities to interfere with a constituent assembly. However,
people may have the right to abolish it prematurely by petitioning the judicial
branch of government. Simply put, a constituent assembly cannot be autonomous
or independent body from the people generally. The people establish the
constituent assembly and it must remain accountable to them. This principle is
summed up by Braxton thus, “the right to confer power necessarily carries with it
1 Surendra Bhandari, (2014), Self-Determination and Constitution Making in Nepal: Constituent Assembly,
Inclusion, and Ethnic Federalism, Springer, London, pp.53-54.
2 Bhandari, at p.53.
3 Ibid.
4 Ibid., p.54.
5 Ibid.
15
the right to limit the power conferred…”1 Indeed, the right to hire normally carries
with it the right to fire. If the people create the assembly, then the same people
should have the power to hold it accountable.
It is also worth noting that a modern constituent assembly is regarded as a forum

or means of changing a government through peaceful means. In the past, “the
accepted wisdom”2 in Europe in relation to reform of government could be
summed up in this mantra: heads must roll; slay the princes; blood must be spilled!
It was believed that genuine and meaningful reforms could be achieved through
what Rosenfeld termed “a violent tear in the political fabric and a radical shift in
the polity’s conception of its own identity.”3 Focusing on England, Braxton points
out that all major changes in the form government in that country, in 1215, 1660,
and 1688, were all brought about through revolutions.4 It is generally known that
revolutions are destructive of both life and property. Anarchy is not the best way
of reforming a government in a civilised society. Thus, as Braxton contends,
civilisation of the order-loving and law-abiding society abhors anarchy just like
nature dislikes vacuum.5 According to him, while people have the right to abolish
or alter their government, it is highly prudent and absolutely necessary for that
right to be exercised in a peaceful manner.6 It is through a constituent assembly
that a political society attempts to, as Hamilton noted, establish a “good
government from reflection and choice”, instead of depending “on accident and
force.”7 Therefore, as it is said, a constituent assembly provides an alternative to
violent and destructive revolutions. However, recent political upheavals in North
Africa and the Middle East, which have been dubbed “the Arab Spring,” have
1 A. Caperton Braxton, “The Powers of the Approaching Constitutional Convention in Virginia”, in The
Virginia Law Register, Vol. 7, No. 2 (Jun., 1901), pp. 100-106, at p.101.
2 Michel Rosenfeld, “Constitution-Making, Identity Building, and Peaceful Transition to Democracy:
Theoretical Reflections Inspired by the Spanish Example”, 19 Cardozo Law Review, 1998, pp. 1893–94, at
p. 1893. Cited in William Partlett, “The Dangers of Constitution-Making”, in Brooklyn Journal of
International Law, Vol.38, No.1, 2012, pp.193-238, at p.197.
p. 1893. Cited in Partlett, op. cit., p.197.
4 A. Caperton Braxton, “Powers of Conventions, Virginia Law Register, Vol. 7, No. 2 (Jun., 1901), pp. 79-
99 at 83.
5 Ibid., p. 87.
6 Ibid., p. 85.
7 Cited in Mark Tushnet, “Some Skepticism about Normative Constitutional Advice”, in William and
Mary Law Review, Vol. 49, No. 4, 2009, pp.1473-1495, p.1473. See also John E. Finn, (1991), Constitutions
in Crisis: Political Violence and the Rule of Law, Oxford University Press, New York and Oxford, p.4.
16
demonstrated that as long as governments resist peaceful change, revolutions are

there to stay.
Constituent assemblies are also characterised as “irregular institutions.”1 In this

connection, they are also described as “extraordinary”, “revolutionary”,
“specialised”, or “extra-parliamentary” institutions.2 This characterisation is, in the
first place, based on their distinction from “regular, ordinary or formal
institutions” of government like the legislature, the executive, and the judiciary.
One constitutional theory that existed in America held that when established, a
constituent assembly becomes the fourth branch of government.3 Postulating this
theory, Hoar partly states: “… the weight of authority is to the effect that the
convention, when in session, is a fourth branch of the government, with the same
immunity from interference as that possessed by the other three.”4 The aim of this
constitutional theory was to protect assemblies from the formal branches of
government (the legislature, the executive, and the judiciary). If it was a branch of
government, though a temporary one, it would be constitutionally immune from
interference by the other branches of government in accordance with the doctrine
of separation of powers. But this theory never enjoyed wide acceptance. Many
authors characterise assemblies as irregular or anomalous institutions which exist
independent of the existing government.5 In the American case of Wells v. Bain6,
the Supreme Court of Pennsylvania held, “The convention is not a co-ordinate
branch of the government. It exercises no governmental power, but is a body raised
by law in aid of the popular desire to discuss and propose amendments.”7

International Law, Vol. 38 No.1, 2012, pp.193-238, at p.197.
2 See William Partlett, “The Elite Threat to Constitutional Transitions”, in Virginia Journal of International
Law, Vol. 56, No. 2, 2016, pp.407-458, at p.410. See also William Partlett, “The Dangers of Constitution-
Making”, in Brooklyn Journal of International Law, Vol. 38 No.1, 2012, pp.193-238, at pp.200-1.
4 Ibid., op. cit., p.91.
International Law, Vol. 38 No.1, 2012, pp.193-238, at p.197.
6 (1872), 75 Pa. 39, 57.
7 Cited in Hoar, op. cit. p.90.
17
Certainly, the government in its capacity as the agency of the people might have
organised a constituent assembly, whose members might also be in receipt of
allowances or salaries from the same government. Nevertheless, this alone does
not make an assembly a part of the government. It is a distinct and separate
institution. In other words, it is an extra-governmental institution established by
the people for the purpose of reforming their government. Unlike the branches of
government, which are ordinarily established by a constitution, a constituent
assembly is not. It was held in an American case, Loomis v. Jackson,1 that “A
constitutional convention lawfully convened, does not derive its powers from the
legislature, but from the people.” This characterisation equally applies to
constitutional commissions, committees of experts and other specialised
institutions that were discussed in other lectures.
In the second place, constituent assemblies are regarded as irregular, specialised,

extraordinary, revolutionary or anomalous institutions because they are a result
and part of irregular or extraordinary constitution-making processes. In the
majority of cases, constitution-making or reform processes occur anomalously.
They arise out of political situations which are not envisaged by the existing
constitutional rules.2 In the words of Dann and Al-Ali, “constitution-making in the
‘revolutionary’ concept implies a moment of political rupture that erases the old
and creates the new [constitutional order].”3 It may be noted that state
constitutions are usually presupposed to exist perpetually. While they have
provisions for their incremental change (amendment), they normally do not
contain provisions for their abrogation. In other words, the existing constitutions
do not authorise constitution-making processes that are intended to radically
change or abrogate them. For this reason, a constitution making is an irregular,
extraordinary or revolutionary process. It entails a break with the pre-existing
constitutional order, as Reyntjens asserts.4 As it is also said, the constituent power,
1 (1873), 6 W. Va. 613, 708; cited in Hoar, p.69.

2 William Partlett, “The Dangers of Constitution-Making”, in Brooklyn Journal of International Law, Vol.
38 No.1, 2012, pp.193-238, at p.200.
3 Phillip Dann and Zaid Al-Ali, “The Internationalized Pouvior Constituant — Constitution-Making
Under External Influence in Iraq, Sudan and East Timor, in A. von Bogdandy and R. Walfrum (eds.),
Max Plank Yearbook of United Nations Law, Vol. 20, 2006, p.423-463, at p.426.
4 Filip Reyntjens, “Constitution-Making in Situations of Extreme Crisis: The Case of Rwanda and
Burundi”, in Journal of African Law, Vol. 40, No. 2, Liber Amicorum for Professor James S. Read (1996),
pp. 234-24, at p.234.
18
that is, the people’s power to change a constitution and reform or abolish their
government is not encumbered by the existing constitutional or legal rules.1
It needs to be asked, why irregular institutions? Differently put, why wasting time,
public money and other resources in forming irregular while regular or formal
institutions exist? To a large extent, our historical inquiry answers this question.
However, at the risk of repetition and prolixity, more explanation based on
modern political and constitutional theories is necessary. Three reasons may be
advanced. First, as it has been stated, a constitution has to be written by a body
specially established for that particular purpose. It means that only the body that
enjoys popular authority to exercise constituent power is the one that should write
a constitution. It is not necessary to belabour this point. Second, even with its
claimed democratic benefits the multi-party political system is inherently divisive.
It tends to divide the people. The political branches of government (the executive
and legislature), and in some states even the judicial branch, are partisan
institutions formed by particular political groups. The legislature, which usually
combines various political interests, could be, as it is common, dominated by one
or few political parties. In an African setting, the formal governmental institutions
might be controlled by one or few ethnic communities in exclusion of others.
Furthermore, not all interests, whether political, economic or social, are
represented or reflected in the formal institutions of government. For this reason,
in order to establish a neutral and consensual constitutional order, which enjoys
legitimacy (acceptance) across the population, it becomes necessary to form an
extra-governmental institution that unifies different interests across the nation’s
social, economic and political spectrum. It is an attempt to bring a nation together
in order to invoke the power that does not belong to any political, social or
economic group but to the entire nation ― constituent power. As it was held in the
American case, Ellingham v. Dye2, “To erect the State or institute form of its
government is a function inherent in the sovereign people.”3 Although there are
states that still prefer to use Parliaments in constitution-making, the modern trend
and wide consensus are that different or extraordinary processes and institutions
are preferable. In this connection, Partlett notes, “Popular constitution-making is
1 Carl J. Friedrich, “The New French Constitution in Political and Historical Perspective”, in Harvard
Law Review, Vol. 72, No. 5 (Mar., 1959), pp. 801-837, at p.810.
2 (1912), 178 Ind. 336.
3 (1912), 178 Ind. 336, at p. 344.
19
grounded on the belief that a successful process of constitution-making must be

separated from ordinary politics.”1
Third, ordinarily, the most predominant agenda in a constitution-making process

is government-reform. It is difficult, if not impossible, for the government to
reform itself. Since unilateral governmental reform is ordinarily unconceivable,
pressure for reform must come from outside. Those serving in the government
might be corrupt, guilty of horrendous and gross human rights violations and, as
it is usually the case, might want to cling to power for the preservation of their
economic and social benefits, and might wish to avoid any accountability for their
maladministration. On this basis, it becomes hugely imperative for the people of a
particular state to form an institution outside the government framework for the
purpose of reforming their government. The rationale for this is to avoid what
Partlett terms “self-dealing.”2 Stated differently, the formation of an irregular
institution is, therefore, meant to avoid “personal, group, and institutional
interests”3 of those who are serving in the government. In all likelihood, they
would prevent any progressive reforms and strive for the maintenance of the self-
serving status quo. On account of this philosophy, if an irregular or special
institution is formed but it is nevertheless packed with the members of the
government (especially the executive and legislature), as it was done with regard
to the 2014 Tanzania Constituent Assembly, then the government-reform agenda
cannot succeed. For the present purpose, the description of the irregularity of
constituent assemblies suffices.
One more aspect of constituent assemblies deserves a mention here. Apart from
being irregular or anomalous institutions, they are also “ephemeral institutions.”
Unlike legislatures or other constitutional institutions, they are ordinarily
convened on a temporary basis. It is probably on this basis that Proksch defines
constituent assemblies as “temporary, non-legislative bodies convened for the
primary purpose of drafting or revising a constitution.” 4 Ordinarily, such
1 Partlett, “The Dangers of Constitution-Making”, op. cit., p.195.

2 William Partlett, “The Elite Threat to Constitutional Transitions”, in Virginia Journal of International
Law, Vol. 56, No. 2, 2016, pp.407-458, at p.412.
3 Jon Elster, “Forces and Mechanisms in the Constitution-Making Process,” Duke Law Journal, 1995 Vol.
45 No 364, pp.364-396 at p.376-382.

4 Sven-Oliver Proksch, (2008), A Comparative Institutional Analysis of Constitutional Conventions in the
Eastern Union and Germany, University of California, A PhD Thesis Submitted to the University of
California, p.1.
20
institutions are dissolved immediately after accomplishing their mandate. The

Tanzanian legislation represents this world-wide practice:
After the enactment of the proposed Constitution, consequential and

transition provisions, the Constituent Assembly shall stand dissolved
and powers to enact provisions for the proposed Constitution,
consequential and transition provisions shall abate.1
The reasons for their ephemerality are not far to seek. One reason is that
constitutions are rarely made. It would thus be pointless and uneconomical to have
an institution which might not be deployed for decades or even centuries. The
second reason appertains to political stability. As it has been highlighted in other
lectures, state constitutions are ordinarily written in times of crisis ― revolution,
civil war, mass demonstrations, mass riots, turbulent political pressures, after
disastrous defeat in war, or other political disorders.2 For this reason, a
constitution-making process usually represents more political trouble than
stability. To maintain an institution whose function is connected to instability is to
keep demons around one’s house, so to speak. It could result into multiple, and
even unwarranted, demands for constitutional change. Such situation would work
against stability, which is ordinarily the holy grail of any political society. In line
with this policy, as noted above, state constitutions do not stipulate the manner of
replacing them. Article XVIII, Section 2 of the State of California Constitution, 1880,
is one of rare species of constitutional provisions that prescribe how a
constitutional convention could be summoned to revise the constitution (i.e. make
an entirely new constitution).3 There is also a distinct provision for amendment.4
But the 1787 USA Constitution directs summoning a constitutional convention for
amendment purposes only, not a total change.5
1 Section 28(1) of the Constitutional Review Act, 2011.

45 No 364, pp364-396 at p.370. See also, Jon Elster, “Arguing and Bargaining in Two Constituent
Assemblies,” in Journal of Constitutional Law, Vol. 2, No. 2, Mar. 2000, pp.345-421, at p.347.
3 It reads thus, “The Legislature by rollcall vote entered in the journal, two-thirds of the membership of
each house concurring, may submit at a general election the question whether to call a convention to
revise the constitution. If the majority vote yes on that question, within 6 months the Legislature shall
provide for the convention. Delegates to a constitution convention shall be voters elected from districts
as nearly equal in population as may be applicable.”
4 Article XVIII, Section 1 of the Constitution of the State of California, 1880.
5 Article V of the Constitution of the United States, 1787.
21
Classification
In an attempt to examine the powers and functions of constituent assemblies, some
description of their classifications becomes essential. For powers of such
institutions ordinarily tend to vary depending on their nature. Constituent
assemblies have been classified variously. Fafard and Reid classify them in
accordance with the mode of composition.1 To them there are “directly elected
constituent assemblies,” “indirectly elected constituted assemblies”,
“constitutional conferences”, “representative legislative committees”, and
“constitutional commissions.”2 The authors do not state the reasons for
categorising constitutional commissions as constituent assemblies. It is the
argument herein that constitutional commissions are not constituent assemblies
because they are institutions of a different nature. For his part, Elster categorises
constituent assemblies into four groups: “constitutional conventions, mandated
constituent legislatures, self-created constituent legislatures, and self-created
legislating assemblies.”3 Elster’s classification is based chiefly on the manner the
assemblies are created. Closely related to this classification is the one that focuses
on the originality. Three American authors, Braxton4, Jameson5 and Hoar6, have
attempted to classify constituent assemblies on the basis of their originality.
Jameson’s list contains four types but the other two authors have restricted theirs
to two. A close examination of classification by Jameson would appear that two
categories included in his classification are not constituent assemblies. For
instance, he lists a normal legislature in its ordinary legislative capacity as a
constituent assembly.7 It is opined that a normal legislature cannot be regarded as
a constituent assembly when it is enacting ordinary laws in its legislative capacity.
The other, “spontaneous constituent assembly,” exists in what he terms a “civilised
society.”8 Jameson’s explanation about this category is far from being clear. On this
basis, the classification that categorises the assemblies as revolutionary and
constitutional is adopted. Let us discuss each of the two below.
1 Patrick Fafard and Darrel Robert Reid, (1991), Constituent Assemblies: A Comparative Survey, IIGR,
Queen's University, Ontario, pp. 5-6.
2 Ibid., pp. 5-6.
3 Jon Elster, "The Optimal Design of a Constituent Assembly" on

October 2016, pp.7-8.
4 Braxton, “Powers of Conventions”, op. cit., p.80.
5 Jameson, op. cit., pp. 3-16.
7 Jameson, op. cit., pp. 3-16.
8 Ibid., p. 3.
22
 Revolutionary Constituent Assemblies

A revolutionary constituent assembly is the one that emanates from a revolution.
The corollary of this is the question ― what is a “revolution”? Revolution
phenomenon has been a subject of extensive discussion in political science and, to
a smaller extent, in law and sociology. One of the multitude political theories on
the subject is advanced by Tanker and Midlarsky who state thus: “a successful
revolution occurs when, as a result of the challenge to the governmental elite,
insurgents are eventually able to occupy principal roles within the structure of
political authority.”1 George S. Petee offers a legalistic definition: “A revolution is
a change in the constitution by illegal means.”2 Furthermore, the High Court of
Uganda described a revolution as “an abrupt political change not contemplated by
the existing Constitution that destroyed the entire legal order and was superseded
by a new Constitution, namely, the 1966 Constitution, and by effective
government.”3 Thus, a constituent assembly resulting from an abrupt and illegal
or unconstitutional change of government is a revolutionary constituent assembly.
But this is not all. A constituent assembly that is held without the authority of law
and the existing government in a state is nevertheless a revolutionary one. Hoar,
for instance, describes constituent assemblies that were held in America during the
revolutionary war, that is, before the government in power was removed, as
revolutionary.4 As he states, “The conventions of the Revolutionary War were
governed by no law but the law of extreme necessity.”5
From the above discussion the following can be said of the revolutionary
constituent assembly. Firstly, it is normally held after the removal of the
government or during the existence of a government but without its authority.
Secondly, normally, it is not governed by law. Thirdly, the powers of a
revolutionary constituent assembly are not limited. It does whatever considered
necessary by the power usurpers or their supporters. It is the coercive force or
terror that reigns supreme under such circumstances. The French National
Constituent Assembly (1789-91) was typically revolutionary institution that
arrogated governmental powers upon itself. The 1848-9 Frankfurt Assembly
1 Cited in K.K. Misra and Kalpana M. Iyengar, (1988), Modern Political Theory, S. Chand & Company
(Pvt) Ltd, New Delhi, p.581.
2 Cited in ibid.
3 Uganda v. Commissioner of Prisons, Ex Parte Matovu [1966] 1 EA 514.
5 Ibid.
23
though it was not entirely revolutionary, it had some revolutionary roots.

According to Elster, on 5th March 1848, certain self-appointed leaders met in
Heidelberg town to discuss the future of Germany, without the authority of the
government or anyone.1 They appointed a committee to organise elections to an
assembly that they had decided to convene, that is, the 1848 Frankfurt Assembly.2
Hoar cites the 1861 Missouri Convention and many other conventions held in
Southern American states during the Revolutionary War against Britain for being
revolutionary.3 They were not organised by government. In East Africa, a
revolutionary constituent assembly has been held at least once. Due to its historical
significance in the region, more details are given than it would have been
otherwise necessary. It is famously known as “the Moshi Conference.”4 It was held
from 24th to 26th March 1979, at YMCA Hotel, in Moshi town, North Eastern of
Tanzania.5 It comprised of Ugandan groups and individuals who lived in exile
during the dictatorship of Idi Amin (1971-9). At the time when it was held there
was an ongoing war between Tanzania and Uganda, the war which was ignited
by Amin’s invasion of Tanzania on 10th October 1978. It would appear, in March
1979, Tanzanian troops in the Ugandan jungles were making a tremendous
progress. The Conference was meant to form a transitional government for
Uganda that would take over in case the Amin government fell.6 It was organised
by Tanzanian Government and the Minister for Foreign Affairs at the time, Mr.
Benjamin William Mkapa, was particularly the one who handled the task.7
The Conference included groups like the Obote’s Kikosi Maalum (Special Squad)
which was led by Tito Okello and David Oyite Ojok as commanders; FRONASA8
(commanded by Yoweri Museveni), Save Uganda Movement (under direction of
1 Jon Elster, (2000), Ulysses Unbound: Studies in Rationality, Precommitment and Constraints, Cambridge
University Press, London, p.106.
2 Ibid., p.106.
3 See, Hoar, op. cit., pp.129-130.
4 See, Yoweri Kaguta Museveni, (1997), Sowing the Mustard Seed: The Struggle for Freedom and Democracy
in Uganda, Macmillan, London, p.104-108; G.W. Kanyeihamba, (2010), Constitutional and Political History
of Uganda: From 1894 to the Present, 2nd edn, LawAfrica, Kampala, p.140; A.B.K. Kasozi, (1999), The Social
Origins of Violence in Uganda, Fountain Publishers Ltd, Kampala, p.126.
5 Museveni, ibid., pp.104-108.
6 G.W. Kanyeihamba, (2010), Constitutional and Political History of Uganda: From 1894 to the Present, 2nd
edn, LawAfrica, Kampala, p.141.

7 Kanyeihamba, op. cit., p.140.
8 This abbreviation stood for the Front for National Salvation.
24
Akena p'Ojok, William Omaria and Ateker Ejalu); and the Uganda Freedom Union
(with Godfrey Binaisa, Andrew Kayiira and Olara Otunnu as its leaders).1 Some of
the individuals who attended included Yoweri Museveni, Tito Okello, Paulo
Muwanga, Zed Maruru, William Omaria, Omony- Ojwok and Dani Wadada
Nabudere (the last two were law lecturers at the Faculty of Law of University of
Dar es Salaam). Milton Obote, the former President of Uganda who was deposed
by Amin, was resident in Dar es Salaam at the time but did not attend the
Conference.2 According to Museveni, he was prevented from doing so by Nyerere
for the fear that he would have been a divisive factor as many groups including
Museveni’s FRONASA were opposed to him.3 Among other things, the
Conference discussed and drafted a constitution. The Drafting Committee under
the chairmanship of Mr George W. Kanyeihamba handled the drafting task.4 The
Constitution created the Uganda National Liberation Front (UNLF) whose purpose
was “to wage war against the Idi Amin regime, establish a national government
for Uganda and restore democracy and freedom to Uganda.”5 The UNLF
Constitution established the National Consultative Council (legislative branch),
the National Executive Council (the executive branch), the Military Commission,
and the Political and Diplomatic Commission.6 Being a revolutionary constituent
assembly, the Conference could have created a judicial branch as well. But, as it
would appear, the Conference never intended to interfere with the judiciary as it
existed in Uganda at the time. As Postema states, “[in] major political upheavals
and revolutions, large portions of established bodies of law have been known to
survive radical disruptions of the activities of, and even wholesale disarray among,
governmental institutions, including courts.”7
By way of acclamation, the Conference elected Prof Yusuf Abdullah Kironde Lule,
the Former Makerere University Vice Chancellor, as the Chairman of UNLF, who
would be the President of Uganda in event the war against Amin was won.8
Through the same procedure, Prof Edward Rugumayo became the Chairman of
1 Museveni, op. cit., pp.104-108.

2 Ibid., p.104.
3 Ibid.
5 The preamble to the UNLF Constitution as cited by Kanyeihamba, op. cit., p.141.
7 Gerald J. Postema, (2011), A Treatise of Legal Philosophy and General Jurisprudence, Vol. 11: Legal
Philosophy in the Twentieth Century: The Common Law World, Springer, Carolina, at p. 543.
25
the National Consultative Council and Prof Dani Nabudere became the Chairman
of the Political and Diplomatic Commission.1 Paulo Muwanga and Yoweri
Museveni became the Chairman and Vice-Chairman of the Military Commission
respectively.2 By the way, Tanzanian troops marched into the streets of Kampala
on 11th April 1979, Amin fled, and Prof Yusuf Lule was sworn in as a new President
of Uganda on 12th April 1979.3 Thus, in all practical sense, the Moshi Conference
was a revolutionary constituent assembly. It made a constitution and created
government. It was not organised through law. Neither was it recognised by the
government of Uganda at the time. Again, the people of Uganda elected none of
its members. Probably, the questions that were posed by one of its members,
Yoweri Museveni, in the Conference paint the picture so vividly: “who are you?
Whom do you represent? What is your legitimacy?”4 These questions irritated
many members and made the questioner very unpopular, as Museveni reveals,5
but they depicted the nature of the Conference perfectly.
 Constitutional Constituent Assemblies

The second category of constituent assemblies is what is termed a “constitutional
constituent assembly.” The use of the adjective “constitutional” is simply meant to
indicate that it is a “legal assembly” as contrasted from the “revolutionary one.”
Its distinctive mark is highlighted by Braxton: “The Constitutional Convention co-
exists with the former government, which continues to perform its functions, by
virtue of the old Constitution and laws, until the new Constitution is adopted.”6
Ordinarily, they are established by a constitution, constitutive legislation or some
other legal instrument. As we shall discuss, its composition is normally
determined by law. This is the most common species of a constituent assembly in
a modern day. Its examples are not difficult to find. Constituent assemblies in
Namibia (1989-90), Ethiopia (1994), South Africa (1994-6), Uganda (1994-5), Eritrea
(1997), Kenya (2003-4), Nepal (2008), Tunisia (2011), and Tanzania (2014), are some
of the recent assemblies that have been organised legally. Another important
feature of such assemblies, when compared with the revolutionary ones, is that
law controls their powers.
1 Ibid., p.142.
2 Ibid.
3 Museveni, op. cit., p.109.
4 Ibid., p.106.
5 Ibid.
6 Braxton, “Powers of Conventions,” op. cit., p.80.
26
The legally organised assemblies can be categorised into two: the broad-powered
and restricted constituent assemblies. The “broad-powered assemblies” are
usually vested with broad mandate with regard to the constitution-making
process. The South African Constitutional Assembly (1994-6) had an extensive
mandate. It had the responsibility to collect people’s opinions, conduct public
awareness programmes, and prepare a draft constitution, and debate on it before
it submitted the same draft to the Constitutional Court for ratification. Despite its
expansive mandate, it cannot be correctly stated that it had power to do
everything. It was obliged to observe the 34 constitutional principles stipulated by
the 1993 Interim Constitution of South Africa. These were, in essence, limitations
upon its powers. Previously, the Indian Constituent Assembly (1946-9) was also
conferred with wide mandate. Recently, the Nepalese Constituent Assembly
(2008) was also given the power to do many things like the South African
Constitutional Assembly.
The restricted assemblies exercise fewer powers than the former category. Such
assemblies deal with draft constitutions prepared by other institutions like
constitutional commissions, committees of experts, or other designated
institutions. In such a case, the responsibility to collect public opinion, imparting
public awareness programmes, and preparation of a draft constitution would
normally rest on such institutions. In this connection, Prof Yash Ghai states thus:
“The constituent assembly’s role in determining goals is limited in those cases
where the draft is prepared by a constitutional commission or some similar body.
The assembly may be free to modify the draft or even to reject it but in practice its
choices are limited.”1 Thus the constitution-making processes in Ghana (1991-2),
Uganda (1988-95), Kenya (1997-2010), Tanzania (2011-4), and Zimbabwe (2009-13)
have included constitutional commissions and committees of experts. The major
functions of constituent assemblies in such processes have been confined to
dealing with constitutional drafts. We shall revert to the discussion on the powers
of the assemblies elsewhere in this paper.
1 Yash Ghai, “The Role of Constituent Assemblies in Constitution Making”, IDEA, pp.23-4, on
http://www.constitutionnet.org/files/the_role_of_constituent_assemblies_-_final_yg_-_200606.pdf ,
accessed on 12th September 2016.
27
Composition of Constituent Assemblies
 Overview and Guiding Principles

Having discussed briefly about the history, nature and typology of constituent
assemblies, it is proposed to examine the way they are composed in substantial
detail. Like earthquakes, the vagaries associated with revolutionary constituent
assemblies cannot be ascertained with any degree of precision. How such an
assembly is to be formed falls squarely in the whims of those in control of power
at the particular point in time. Thus, the discussion on composition of constituent
assemblies does not apply to revolutionary ones. By and large, the practice of
various states is not consistent. Historical, social and political forces at play in a
particular state at the time normally play a determinative role on the way a
constituent assembly would be composed. Neither are practices of various states
immutable. They tend to vary depending on the reigning social, economic and
political forces. The discussion only focuses on the general practice while trying to
highlight the governing principles. Determining the composition of a constituent
assembly is an important political decision. In reality, competing partisan interests
often attend such decisions. It is a common trend for governments, different social
groups, political parties, and civil society organisations, to struggle for
representation in such an assembly. The idea is to have an opportunity to influence
decisions in the assembly. More often than not, those in power who ordinarily
strive to control constituent assemblies in order to safeguard either national or
partisan interests or both complicate the situation. It is in the light of this short
background that compositions of constituent assemblies are discussed. However,
before discussing the practice, something needs to be said about principles that
govern the composition of constituent assemblies.
 Constituent Power and Democracy

The principles of constituent power and democracy have to assume primacy in
forming a constituent assembly. Both principles put the people of a particular state
at the centre of all decisions relating to the change of the framework of their
government. Although these principles were discussed in the previous lectures
they need to be elucidated here, though cursorily. It is a democratic principle that
people should participate in making key decisions regarding their lives and public
affairs generally. As to democracy, this explanation suffices. Let us discuss the
other principle. The most important constitutional principle in Tanzania and all
28
Republican states is “the doctrine of popular sovereignty.” It is essentially means

that the ultimate power or highest power (sovereignty), or, as James Wilson said,
“the power to which there is no appeal,”1 in a republic lies with the people in their
collective sense. Article 1 of the South Carolina Constitution, 1895 (before it was
amended) captured well the doctrine of popular sovereignty:
That all power is inherent in the people, and all free governments are founded on
their authority, and instituted for their peace, safety, and happiness; for the
advancement of those ends they have at all times, an unalienable and indefeasible
right to alter, reform, or abolish the government in such manner as they may think
proper.
This doctrine has many aspects but only two of them are considered here. One
aspect is that any governmental power, whether legislative, executive or judicial
in nature, is derived from, and exercised on behalf of, the people.2 In other words,
the legislative power (the power to make laws), the executive power (the power to
execute or enforce laws) and judicial power (the power to interpret laws and
resolve disputes) are derived or borrowed from the people. In this sense, the
government (whether central or local) is formed by, and it is an institution whose
sole function is to serve, the people. All government leaders including the
President and all civil servants are employees of the people. In other words, they
are employees or servants but tax payers or people are the bosses. This doctrine
subordinates the government to the people. The doctrine is clearly provided in
many republican constitutions of France3, Spain4, the United Republic of
Tanzania5, Kenya6, Uganda7, Rwanda8, and Ethiopia9, just to cite few examples.
Another aspect of popular sovereignty is what is called “constituent power”,

which, as Justice Ringera held, “is the hallmark of the people’s sovereignty.”10
According to George Lawson, constituent power is the “power to constitute,
1 Qoted in Andreas Kalyvas, “Popular Sovereignty, Democracy, and the Constituent Power,” in
Constellations, 2005, Vol. 12, No. 2, pp.223-244, at p.223.
2 Njoya and others v Attorney-General and others [2004] 1 EA 194 at p.210.
3 Article 3 of the Constitution of France, 1958.
4 Article 2 of the Spanish Constitution, 1978.
5 Article 8 of the Constitution of the United Republic of Tanzania, 1977.
6 Article 1 of the Constitution of Kenya, 2010.
7 Article 1 of the Constitution of the Republic of Uganda, 1995.
8 Article 2 of the Constitution of the Republic of Rwanda, 2003.
9 Article 8 of the Constitution of the Federal Democratic Republic of Ethiopia, 1994.
10 Njoya and others v Attorney-General and others [2004] 1 EA 194.
29
abolish, alter, reform forms of government,” that is, the “power to model the
state.”1 Although people can exercise this power through a revolution, it is
normally exercised peaceably through constitution-making. Thus, the power to
“constitute” (make or form) the government, that is, the constituent power,
belongs to the people. As it was held in Njoya and others v Attorney-General and
others2, “Constitutions are supposed to be made by the people in whose constituent
power is reposed.”3 Therefore, unlike the legislative power (the power to make
ordinary laws) which is delegated to Parliament through the Constitution,
constituent power remains with the people. Metaphorically speaking, like a lady’s
handbag, constituent power is kept in the people’s armpits. They walk, sit, rest and
sleep with it. They have never given or delegated it to any governmental
institutions (the executive, legislature or judiciary). In other words, while
“legislative power”, “executive power” and “judicial power” are essentially
“borrowed powers” (borrowed by the governmental institutions from the people),
constituent power is “unborrowed power” (people have not lent it to the
legislature or any other branch of the government). Thus, Parliament, or any other
branch of government, has no power to make a constitution. Of course, through
the Constitution, people have given only a small “bundle” of this power to
Parliament. This is the power to amend the Constitution.4 The reason for this “gift”
is that it is expensive and inconvenient for the people to meet and amend a single
or more provisions of a constitution.5 It thus was held in Ellingham v. Dye6 that the
amendment power is the power “for the aid of the people only.”7As Sathe asserts,
parliamentary power of constitutional amendment is very narrow: “[t]he power of
making a constitution originally is vaster than the power of amending a
constitution.”8 Likewise, it was held in Njoya’s case9 that the amendment power
given to Parliament is very limited and that Parliament has no authority to change
a constitution expansively or entirely. Thus, the power to effect substantial changes
and to make a new constitution belongs to, and remains with, the people.
1 Cited in Kalyvas, A., “Popular Sovereignty, Democracy, and the Constituent Power”, in Constellations,
2005, Vol. 12, No. 2, pp.223-244, at p.226.
3 Ibid.
4 See article 98 of the Constitution of the United Republic of Tanzania, 1997.
6 (1912), 178 Ind. 336, 357.
7Ellingham v. Dye (1912), 178 Ind. 336, 357.
8 S. P. Sathe, “Review of the Constitution: Need to Keep an Open Mind”, in Economic and Political Weekly,
Vol. 35, No. 38 (Sep. 16-22, 2000), pp. 3395-3401, at p. 3399.

30
Therefore, it was partly on account of this principle that the Warioba Commission
had to visit all districts of Tanzania in order to ask the people (the owners of
constituent power) about the kind of a constitution they wanted. Again, the
arrangement was that after all had been done the draft constitution had to be
submitted to the “bosses” in a referendum for them to approve or disapprove it.
Flowing from these two principles (democracy and constituent power) is an

imperative that members or delegates of a constituent assembly must have
authority from the people. It follows that such authority may be granted at least in
three different ways: direct election, indirect election, or appointment by a person
or body that has been specifically authorised by the people to carry out that specific
function. The overriding demand is that a constitution must be framed “by a body
for that purpose specially chosen and commissioned.”1 And this requirement that
members of such an assembly must have been “specially appointed for that
particular purpose” has crystallised itself into a universal principle. It was the idea
that necessitated the establishment of constituent assemblies as separate bodies
from ordinary legislatures. In other words, members of ordinary legislatures are
not elected for the purposes of exercising constituent power. Propounding this
principle, Prof Nwabueze observes:
Since a Constituent Assembly can reflect the popular will only in an

approximation sense, it is necessary that its mandate in this respect should
be specifically conferred through an election specifically organised for that
purpose at which people are made clearly to understand that they are voting
to authorise the adoption on their any process by which an existing
legislative assembly without popular mandate is limited to law-making
according to existing constitution. Such a process is both hypocritical and
disingenuous. The position is not different from what it would be if the
assembly in its normal capacity just assumed the power without going
through the meaningless formality of resolving itself into a Constituent
Assembly on the ground that the dignity and importance of the process
would be thereby enhanced.2 [Emphasis added].
Similarly, speaking about the 1787 American Constitution Convention, Griffin

notes,
1Jameson, op. cit., p. 1.

2Benjamin O. Nwabueze, (1981), The Presidential Constitution of Nigeria, Palgrave Macmillan, London;
Cited by Benjamin J. Odoki, (2005), The Search for a National Consensus: The Making of the 1995 Uganda
Constitution, Fountain Publishers, Kampala, pp.253-4.
31
A constitution had to be created in a special convention called for that

purpose. The idea was that the entire people, through the mechanism of the
convention and subsequent popular ratification, were the creators of the
constitution. The constitutional convention was thus linked intimately with
the doctrine that the people were the sole sovereign in American
government.1 [Emphasis added].
The central theme in the quoted academic works is a two-pronged: one, a

constitution should be made by a specially created body, and two, members of
such should be elected for that particular purpose. As noted above, the principle
that a constitution should be made by representatives elected for that particular
purpose was affirmed by the UN Human Rights Committee in Marshall v. Canada.2
Even within East Africa, the principle has received judicial approval. It was in the
Kenyan case of Njoya and others v Attorney-General and others.3 In this case, the
composition of the 2003-4 National Constitutional Conference was challenged in
the Kenyan High Court for being dominated by members of Parliament (MPs) who
had not been elected for that particular purpose. Responding to this specific issue,
Ringera, J., said:
Strictly speaking one cannot be a representative of another if the latter

has not elected him to do so. That being so, it would be to turn logic on
its head to describe a body largely composed of unelected membership
as a representative one. So the National Constitutional Conference fails
the test of being a body with the peoples’ mandate to make a constitution
and the Applicants’ case that they have been denied the exercise of their
constituent power by means of a constituent assembly is, in my view,
unassailable.4
On account of the foregoing the composition of a constituent assembly that departs

from the principle under consideration renders such an assembly illegal. Apart
from judicial pronouncements, the leading authorities for this assertion are various
constitutional provisions that declare the sovereignty of the people.
1 Stephen M. Griffin, (1996), American Constitutionalism: From Theory to Politics, Princeton University
Press, Princeton, p.12.
3 [2004] 1 EA 194.
32
 Pragmatism
Another invaluable principle that needs to be applied in constituting constituent
assemblies is “pragmatism.” According to Merrian-Webster Dictionary,
pragmatism means “a reasonable and logical way of doing things or of thinking
about problems that is based on dealing with specific situations instead of on ideas
and theories.” Applied in the context of constitution-making, it means that
constitution-making is a complex process which calls for practical guidance in the
light of the existing principles. In some cases, some principles should give way to
the practical needs geared towards certain good ends. The principle of democracy
in relation to elections is a case in point. Much as election of delegates is
emphasised in principle, it might not be a panacea to all challenges connected to
constituent assemblies. Ironically, elections based on the majority system may
frustrate the process instead of helping it. For example, elections may result into
an assembly wholly constituted of single party supporters. Such eventuality is
possible when one party is well organised and endowed with more financial
resources. As Enright correctly contends, one of the unfortunate tendencies of
democracy is to favour the wealthy people.1 Because of money, they can advertise
through the media and organise their campaigns. This cannot be said of those who
are not financially endowed.
In the same way, in an African setting, elections may lead to a one ethnic group
dominated assembly. Certainly, constitution made by one political party or ethnic
group will not be acceptable to other groups. And such eventuality is likely to
foment disharmony or, more seriously, even a civil war. Furthermore, in an
environment where corruption is rampant, businessmen or drug dealers, for
instance, may use their money to sponsor candidates to a constituent assembly for
the purpose of influencing its decisions. In such case, people’s efforts to establish
good government will be definitely scuttled. Moreover, a constituent assembly
requires people who are experienced and knowledgeable in public affairs. Some
of such people might not wish to engage themselves in the politicised elections or
corruption in cases where corruption takes an upper hand. This means that some
other ways must be devised in order get such people into the assembly. These are
some of the pointers that pragmatic approach is needed in addressing the usually
contentious issue of composing a constituent assembly.
1 Christopher Enright, (1983), Studying the Law, Braxton Press, Sydney, at p. 330.
33
On the basis of the above, the appointment system is unavoidable. Of course, such
system must be handled carefully and altruistically as it has its share of mischief
especially in an impartial environment. Furthermore, emphasis must be laid upon
proportional representation electoral system. Actually, this is what Professor Elster
recommends: “Elections to the constituent assembly ought to follow the
proportional system rather than the majority system. Whatever the advantages of
the majority system in creating ordinary legislatures, a constituent assembly ought
to be broadly representative.”1 Speaking about the Indian Constituent Assembly
(1946-9), Jha notes thus, “The only option left to ensure the adequate
representation of the minorities in the legislature was the mechanism of
proportional representation. It would certainly safeguard against that "pervading
evil of democracy - the tyranny of the majority."”2 To him, “the electoral rule of
proportional representation would ensure that no one's votes would be wasted.”3
In line with this policy, the Ugandan Constituent Assembly (1994-5) was
pragmatically composed in a view to represent various interests.4 People elected
214 delegates in electoral constituencies; various interest groups elected 74
delegates and the President appointed 10 delegates.5 Each interest group was
allotted a specific number of delegates: women (10); military officers (2); trade
unionists (2); each of the four political parties (2); the youth (4) and the disabled
(1).6
In a more pragmatic fashion, members of the 2008 Nepalese Constituent Assembly

were drawn from a mixed electoral system.7 The two most known electoral
systems, that is, the first-past- the post (FPP) and proportional representation (PR)
were applied.8 FPP focuses on the plurality of votes, whether simple or absolute
1 Elster (1993), op. cit., p.395.

2 Shefali Jha, “Rights versus Representation: Defending Minority Interests in the Constituent
Assembly”, in Economic and Political Weekly, Vol. 38, No. 16 (Apr. 19-25, 2003), pp. 1579-1583, at p. 181.
3 Ibid.
4 See, the First Schedule to the Constituent Assembly Statute, 1993.
5 Ibid.
6 Aili Mari Tripp, “The Politics of Constitution Making in Uganda”, in Laurel E. Miller and Louis
Aucoin (eds.), Framing the State in Times of Transition: Case Studies in Constitution Making, United States
Institute of Peace Press, Washington, DC, pp.158-175, at p.163.
7 Mohan Lal Acharya, “Constitution-making Process in Nepal: An Assessment and Lessons for the
Future” in Budhi Karki Rohan Edrisinha (eds.), (2014), Participatory Constitution Making in Nepal: Issues
of Process and Substance, UNDP, Kathmandu, pp.45-86, p.48.
8 Ibid.
34
majority, but PR allocates seats according the votes cast.1 Apart from the combined
electoral systems some members had to be appointed.2 This good and pragmatic
system of constituting the Nepalese Constituent Assembly was made possible due
extensive negotiations which led to the 2006 New Delhi Comprehensive Peace
Agreement.3 The consensus was concretised into law (that is the Election to Members
of the Constituent Assembly Act, 2007). Ordinarily, such balanced system cannot be
achieved in a situation where the power wielders make all decisions.
 Inclusiveness and Diversity

Inclusiveness and diversity is yet another essential principle insofar as
composition of a constituent assembly is concerned. Consensus-building requires
that all key groups are represented in a constituent assembly. The number of
groups that are interested to be represented could be high. In such a case, the
choice of groups to be represented in the assembly becomes a hefty challenge.
Certainly, the choice is a political decision to be made according to the terms of
consensus of the key stakeholders or the judgment of those who wield political
power at the moment. It is proposed that the choice should be guided by the
following factors. First, the need to achieve consensus is a vital factor for
consideration. Thus, all groups whose non-inclusion would affect the legitimacy
of the process must be represented. Second, it ought to be born in mind that a
constitution-building and making is a political process. Therefore, key political
actors ought to be represented. By “political actors” it is meant all groups that
ordinarily engage in politics in one way or the other. They include political parties
and civil society organisations. By their nature, religious groups may not be
practising politics openly but their political influence cannot be underestimated.
Where fundamental religious differences exist, representation of all religious
groups becomes imperative. The typical example is the acrimonious relationship
between the Indian Moslems and Hindus in 1940s. The British attempted to resolve
the challenge by creating Pakistan as a new state in 1947.4 But still religious groups
1 See, the phrases “first-past-the post”, “proportional representation”, and the word “plurality” in
Bryan A. Garner (ed.), (2009), Black’s Law Dictionary, 6th edn (Abridged), West Publishing Co.,
Minnesota.
2 Acharya, op. cit.
33 Ibid., p.65.
4 See, James Chiriyankandath, “Creating a secular state in a religious country’: The debate in the Indian
constituent assembly,” in Commonwealth & Comparative Politics, Vol. 38 No. 2, 2008, pp. 1-24.
35
dominated the Indian and Pakistani constituent assemblies held concurrently. 1 In

such circumstances, it is essential for such groups to be represented. Third,
affirmative action is necessary in order to confer representation to the marginalised
and excluded groups like women, youth, the disabled, and minorities (religious,
racial, or ethnic, etc.).2 Fourth, geographical diversity of those who form a
constituent assembly is a key factor. Delegates who reside in the capital city or
towns may not be aware of the challenges of rural settings and vice versa.
The composition of the 1787 American Constitutional Convention was essentially

a geographical representation. It was the interests of individual states constituting
the Union that were given pre-eminence. With the exception of Rhode Island that
did not send its delegates, all other 12 original states were represented as follows
(number of delegates in bracket):3 Connecticut (3), Delaware (5), Georgia (4),
Maryland (5), Massachusetts (4), New Hampshire (2), New Jersey (5), New York
(3), North Carolina (5), Pennsylvania (8), South Carolina (4), and Virginia (7). 4
These delegates were selected by legislatures of the individual states. As said
earlier, at the federal level, representation was geographical and state-based but
professional, economic and other interests were taken care of at the state level. The
Convention, thus, included 13 planters or large-scale farming, 13 lawyers, 8
merchants, 12 state officeholders, 2 small farmers, 3 medicine men, 1 diplomat, and
34 slaveholders.5 On the other side of the Atlantic, the French National Constituent
Assembly (1789-91) was diverse in terms of social classes that existed at the time.
Each of the three major classes, that is, the first estate (the nobility), the second
estate (the clergy), and the third estate (anybody else) was represented by 270, 291
and 584 deputies respectively.6
 Interest Control and Balancing

Certainly, the most serious and probably the most common disease that impedes
successful constitution-making, so to speak, are interests. On this basis, the “the
1 Fafard and Reid, op. cit., p. 22.

2 See, Kåre Vollan, “Designing an Inclusive Electoral system for Nepal,” Budhi Karki Rohan Edrisinha
(eds.), (2014), Participatory Constitution Making in Nepal: Issues of Process and Substance, UNDP,
Kathmandu, pp.245-270, at p.269.
3 David Bernstein, “The Constitutional Convention: Facts and Figures”, in The History Teacher, Vol. 21,
No. 1 (Nov., 1987), pp. 11-19, at p.13.

4 Ibid.
5 Ibid.
6 Brandt, et al., op. cit., p.241.
36
interest-control principle” is salutary. For those who are responsible for making
decisions regarding formation of a constituent assembly must bear in mind one
crucial fact: if certain interests, especially personal ones, are not subdued the
project of constitution-making is doomed to failure. Otherwise, if a constitution
shaped by personal interests squeezes its way through to its adoption then it
cannot last as demands for constitutional changes will emerge sooner or later. And
in case of conflict, consensus and solution will be hard to come by. It needs to be
noted that the formation of a constituent assembly, a separate body from an
ordinary legislature (or Parliament), betokens control of personal and institutional
interests. The American practice of creating separate bodies called “constitutional
conventions” was meant to control interests. As Dodd correctly observed, the
rights of the people cannot be protected and the aims of limiting the powers of the
government cannot be achieved if Parliament is allowed to make a constitution.1 It
is therefore important to be realised that the inception of a constituent assembly as
a constitution-making institution was borne out of the distrust of MPs.
It stands to be questioned, why Parliaments or MPs should be avoided? Two

reasons may be advanced in response. First, as noted earlier, constitution-making
entails changing the framework of government to which Parliament is part. Often
times such process entails a struggle between those who demand change, on the
one hand, and the government that ordinarily craves maintenance of the status quo,
on the other hand. Thus, the popular call for constitutional reforms stands to hit a
snag if Parliament exercises control over such process. Second, it is reasonably
believed that MPs would serve their personal or institutional interests than
advancing societal or national interests. It is to be conceded that all individuals
hold certain personal interests. It is also true that to compose an institution whose
members have vested homogenous selfish interests is to give them an opportunity
to form a united front in championing for such selfish interests. Thus, to permit all
MPs to form part of a constituent assembly is to afford them a precious chance to
unite for their selfish interests like demands for better salaries and pension
benefits, security of tenure, an electoral system that favours them, resisting
accountability to their constituents, and others. To drive this point home, one more
example is salutary. In Tanzania, for instance, farmers and pastoralists have had a
long history of wrangles over the use of land. If farmers form the majority in a
37
constituent assembly, the imminent danger exists that pastoralism will be

outlawed.
The theory of interests in a constituent assembly is well canvassed by Professor

Elster.1 He classifies interests into three: personal, group and institutional
interests.2 For example, the American Constitution 1787 initially excluded a Bill of
Rights. The delegates from Southern states to the 1787 American Convention, some
of whom were slave-owners, refused the inclusion of a Bill of Rights.3 The ideas of
equality that characterised Bill Rights were certainly incompatible with the slave-
owning which was based on the racial superiority and subordination.4 The Bill of
Rights was introduced through a series of amendments in subsequent years. The
1991 Bulgaria and Romania constitutions also provide other good examples of
consideration of personal interest.5 The two constitutions include provisions that
ensure immunity of the former Communists from criminal prosecutions; they were
able to achieve this by taking part in the respective constituent assemblies. 6
Likewise, the 1992 Czech Constitution establishes the legislature with two houses.
It was “widely seen as an incentive offered to the Czech deputies in the Federal
Assembly to pass a constitutional law abolishing the federation in exchange for a
place in the new Senate.”7 Thus, the two houses were probably not meant for the
benefit of the nation as a whole but to create more job opportunities for MPs. They
also ensured that deputies (MPs) would not be prosecuted until consent of
Parliament was obtained and got rid of all traffic offences for which they could be
liable in future.8 The influence of personal interests was blatant in the 2014
Constituent Assembly of Tanzania in which the will of the people was greatly
undermined. MPs, who formed the majority of the Assembly, watered down all
provisions that were against their personal interests in the constitutional draft
45 No 364, pp.364-396 at p.376-382.
2 Ibid., p.377.
3 Jon Elster, “Constitutional Bootstrapping in Philadelphia and Paris,” in Michel Rosenfeld (ed.), (1994),
Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives, Duke University Press,
Durham and London, pp.57-83, at p.60. See also, Jon Elster, “Constitution-Making in Eastern Europe:
Rebuilding the Boat in the Open Sea,” in Public Administration Vol. 71 Spring/Summer 1993, pp.169-217,
at p.184.
45 No 364, pp.364-396 at p.376-382.

5 Ibid.
6 Ibid.
7 Ibid.
8 Ibid.
38
which was prepared by the Constitutional Review Commission that toured the
country for the purpose of collecting people’s views. They swiftly did away with
the provisions that proposed to limit their tenure to two terms; empower the
constituents to recall their representatives; compel them to reside in their
constituencies; prohibit them from being appointed to ministerial posts; and forbid
them from maintaining accounts in foreign banks.1 Overall, the people’s proposed
changes with regard to the accountability of their representatives were
comprehensively frustrated.
As to group interests, Elster cites many examples of the federally organised states
like the USA, Canada, Germany and Czechoslovakia, whose constitutions reflect
interests of the constituent units of such federations.2 Similarly, he notes the
influence of groups in shaping the constitution of the former Czechoslovakia in
which Slovaks ensured that half of all judges of the Constitutional Court would be
Slovaks and the chairmanships of the country’s Central Bank would rotate
annually between a Slovak and Czech.3 With regard to institutional interests, he
cites the 1921 Polish Constitution and the 1946 French Constitution which were
made by the respective parliaments.4 In each case, the powers of the executive
branch were considerably weakened but those of the legislative branch were
enhanced significantly.5 For these reasons, deliberate steps must be taken in
designing a constituent assembly with a view to minimise, if not to eliminate, such
interests. Reduction of the number of those who have common personal, group, or
institutional interests is salutary. To wind up discussion on this specific point, two
things have to be underlined. First, deliberate steps must always be taken to
prevent selfish interests of certain individuals, groups, or institutions that may
thwart genuine efforts to create a neutral constitutional order. Second, it is
pointless to form a constituent assembly, the institution whose origin was meant
to deny constituent power to Parliament, and then pack it with same MPs.
Moreover, another useful principle to be applied in composing constituent

assemblies is “the interest-balancing principle.” It is natural that members or
1 See, the Draft Constitution of the United Republic of Tanzania, 2013 and the Proposed Constitution of
the United Republic of Tanzania, 2014.
2 Elster (1995), op. cit., p.379.
3 Ibid., p.379.
4 Ibid., p.380.
5 Ibid.
39
delegates of a constituent assembly would have various vested interests. Some of

the interests might be based on their political affiliations (especially those
propagated by their political parties); social membership (religious, ethnic, racial,
regional, etc.), or their economic concerns (business interests and professional
associations). However, this compartmentalisation of interests is more theoretical
than real. It might happen that a religious or ethnic group could advance its
interests for the purpose of advancing the economic status of its members.
Conversely, an economic group might be interested in promoting economic
interests of a certain racial group. Again, the chief target of a political group might
be to capture state power in order to control economic resources. Thus, the
anatomy of interests is ordinarily complex. What is important in this regard is that
these interests must be balanced in a constituent assembly. By “balancing of
interests” it is meant that steps must be taken by unbiased actors to prevent any
group from forming the overwhelming majority as to enable it dictate the terms
and decisions or bulldoze other groups in the assembly. If this is not done then
consensus will be difficult to be attained and a constitution dictated by one or a
few groups in disregard of the overlapping or common interests will hardly find
legitimacy and longevity.
According to Toler, despite the progressive process that gave the Eritrean people
an opportunity to air their views the militarised and dominant political party,
People's Front for Democracy and Justice, suppressed the views of other political
parties and actually decided to shelve the proposed constitution.1 Similarly, in
Iceland an open and participatory constitution-making process that was
dominated by Liberal Party throughout had its resultant draft constitution blocked
by Conservative Party and thereby stalling the whole process.2 In Tanzania, the
2014 Constituent Assembly was dominated by the ruling party, CCM, the result of
which consensus failed miserably and the whole process stalled. These are just few
examples of cases where unbalanced interests led to failure of constitution-making
processes. The South African process, which led to the adoption of the 1996 South
African Constitution, is the only shining star in the cloudy sky, so to speak. The
process was dominated by ANC party which formed the majority. Its potential
failure was avoided on account of two reasons. Firstly, it was preceded by
1 Lorianne Updike Toler, “Mapping the constitutional process,” in Cambridge Journal of International and
Comparative Law, 2014, pp. 1260-1286, at p.1277.
2 Ibid., p.1278.
40
negotiations of a wide-spectrum of stakeholders the result of which was consensus

that was incorporated in the 1993 Interim Constitution as the 34 constitutional
principles.1 The constitution-making process was required to comply with such
agreed principles. Secondly, for the fear that ANC would disregard the principles,
the minority parties successfully insisted for the inclusion of a provision in the
Interim Constitution that required the Constitutional Assembly to submit the draft
constitution to the Constitutional Court for certification.2 The task of the Court was
to examine whether the draft complied with the 34 constitutional principles.3 This
was an ingenious mechanism that was meant to check the powers of ANC and it
turned out to be the country’s magic wand.
Models of Composition
The practice indicates a variety of forms or models that have been employed in
forming constituent assemblies. It is intended to discuss such models in the light
of the principles that have been highlighted above. Nevertheless, the patterns of
forming revolutionary constituent assemblies are difficult to determine in that
decisions are chiefly determined by the caprices of those in control of power at the
wave of a revolution. Of course, if the revolution was meant to satisfy certain
popular demands then a constituent assembly ought to be formed in the manner
that favours the realisation of such demands, the failure of which may ignite a
counter-revolution. For this reason the modalities discussed are in relation to the
regular or constitutional constituent assemblies.
 The Absolute Conversion Model

One of the methods that have been used in forming constituent assemblies is what
we term “the absolute conversion model.” This method entails converting or
resolving an ordinary legislature (Parliament) into a constituent assembly. It
essentially involves conferring an ordinary Parliament a different name ―
“constituent assembly” or some other name. Its members (MPs) would also change
their usual nomenclature to “delegates” or “members of a constituent assembly.”
The chief hallmark of this model is that the entire constituent assembly is
1 Mac Maharaj, (2008), The ANC and South Africa’s Negotiated Transition to Democracy and Peace, Berghof
Research Centre for Constructive Conflict Management, Berlin, at p. 26.
2 Ibid.
3 See, also Per Strand, “Finalizing the South African Constitution: The politics of the Constitutional
Assembly”, in Politikon, 2001, Vol. 28, No. 1, pp. 47-63, at p.48.
41
composed of MPs or ordinary legislature. The composition of the 2016 Sri Lankan
Constitutional Assembly provides a perfect example of absolute conversion
model.1 The Motion through which this was done partly reads as follows:
That this Parliament Resolves that —

1. There shall be a Committee of Parliament hereinafter referred to as the
‘Constitutional Assembly’ which shall consist of all Members of
Parliament, for the purpose of deliberating, and seeking the views and
advice of the People, on a new Constitution for Sri Lanka, and preparing
a draft of a Constitution Bill for the consideration of Parliament in the
exercise of its powers under Article 75 of the Constitution.
2. The Hon. Speaker of Parliament shall be the Chairman of the

Constitutional Assembly. There shall be seven (7) Deputy Chairmen of
the Constitutional Assembly, who shall be elected by the Constitutional
Assembly.2
Interesting as it would appear, the decision to convert (or resolve) Parliament into
a constitutional assembly is made by Parliament itself. The motion says nothing
about the people and whether Parliament was vested with an authority to make a
new constitution. Thus, it was the same MPs acting in the name of a “constitutional
assembly” who undertook the task. When members of the Constitutional
Assembly collected public views, deliberated on them and then prepared a draft
constitution, they would then submit such draft to Parliament (the same persons
acting under a different name). This arrangement highlights the absurdity of this
methodology.
Certainly, this model has long history. For instance, in 1778 the Massachusetts’
legislature had resolved itself into a constitutional convention before making a
constitution that the people subsequently rejected in a popular vote for lack of
authority.3 According to Hoar, about eight different conventions in America were
formed through this mode.4 In 1989, the Hungarian Parliament also turned itself
into a constituent assembly.5 Furthermore, this method is not unfamiliar on the
1 http://www.lankabusinessonline.com/sri-lanka-parliament-converts-to-constitutional-assembly-
members-appointed/, Accessed on 29th August 2016.
2 See, the Resolution for the appointment of the Constitutional Assembly, on
https://www.parliament.lk/files/documents_news/ca-motion/motion-en.pdf, accessed on 29th August
2016.
3 Hoar, at p. 79.
4 Hoar, at p.4.
42
African Continent. In March 1960, the Ghanaian National Assembly converted

itself into a constituent assembly to enact the 1960 Ghanaian Republican
Constitution.1 Elsewhere, in East Africa, this method was used at least in three
different instances. The 1962 Tanzanian Constituent Assembly, which made the
country’s 1962 Republican Constitution, was formed in this way. The President
declared the National Assembly to be a constituent assembly by virtue of section
2(1) of the Constituent Assembly Act, 1962, which permitted the resolution of the
National Assembly into a constituent assembly.2 Five years later, through a similar
piece of legislation,3 the 1967 Ugandan Constituent Assembly was formed in a
similar manner.4 A decade later, the method was replicated in Tanzania. The
country’s President constituted the constituent assembly by appointing all MPs to
be its members in 1977.5 In contrast to the 1962 Constituent Assembly, the 1977
Constituent Assembly was formed in pursuance of the Articles of Union between
Tanganyika and Zanzibar, 1964.6 Furthermore, the South African Constitutional
Assembly (1994-6) exclusively consisted of the members of the National Assembly
and the Senate.7 No other persons were legally allowed to take part in the
Assembly.
One advantage that may be associated with this method is that it is less costly.
Advancing this point, as it was noted in a different lecture, the Zambian
government argued in 2007 that Parliament provides a cheap forum for making a
constitution.8 Furthermore, it can be organised in a relatively short time than any
other form of a constituent assembly. It thus probably suits the situation where
there is an urgent demand to put a constitution in place to restore peace following

October 2016.
1 Egon Schwelb, “The Republican Constitution of Ghana,” in The American Journal of Comparative Law,
Vol. 9, No. 4 (Autumn 1960), pp 634-656, at p. 634.

2 Section 2(1) of this legislation provided, “The National Assembly may resolve itself from time to time
into and constitute a Constituent Assembly for the enactment of provisions for the establishment of a
Republic and for a Constitution therefor.”
3 The Constituent Assembly Act, 1967 (Uganda).
4 See, Nelson Kasfir, “The 1967 Uganda Constituent Assembly Debate,” in Transition, No. 33 (Oct. -
Nov., 1967), pp. 52-56.

5 See, Issa G. shivji, (2008), Pan-Africanism or Pragmatism? Lessons of the Tanganyika-Zanzibar Union,
Mkuki na Nyota Publishers, Dar es Salaam, p.166.

6 This is an international treaty which provides the legal basis of the Union of Tanganyika and Zanzibar
which was signed on 22nd April 1964.

7 See, section 168 (1) of the Interim Constitution of South Africa, 1993.
8 See, Lusaka Times, “Government prefers Parliament to Constituent Assembly over

Constitution―Mulongoti”, on www.lusakatimes.com/2007/05/29 accessed on 16th June 2016.
43
a civil war or redress a serious public disorder occasioned by an abrogation of a

constitution and government through a revolution, coup d'état, or other popular
upheavals.
However, this model is the most problematic model of forming a constituent

assembly in the absence of any urgency. Why calling it a constituent assembly and
not “Parliament”? In this connection, Professor Nwabueze notes, the process of
converting an existing legislature into a constituent assembly is “both hypocritical
and disingenuous.”1 A number of reasons are attributable to this adverse
description. Firstly, as already stated, the control of personal and institutional
interests ought to take primacy. Actually, the chief rationale for the emergence of
a constituent assembly as a constitution-making forum was meant to deny the
members of the legislature an opportunity to make a constitution. Thus, viewed in
the light of this original philosophy, to give such members the responsibility to
make a constitution under the guise of a different name is a futile and cunning
exercise, to say the least. Like many sham elections in Africa, absolute conversion
could be a smokescreen intended only to show the international community that a
country has had a constitution adopted through a democratic constitution-making
process.
The experience has shown that it is almost impossible for MPs to disregard their
personal and institutional interests. As Elster notes, “to reduce the scope for
institutional interest, constitutions ought to be written by specially convened
assemblies and not by bodies that also serve as ordinary legislatures. Nor should
the legislatures be given a central place in the process of ratification.” 2 The
examples of influence of personal and institutional interest in constitution-making
have already been highlighted. The South African Constitutional Assembly stands
to be an exceptional case. No claims have been raised that its members imbued
themselves in a self-serving exercise. In reality, this case must be considered in the
context of special circumstances that existed in South Africa at the time. It is
common knowledge that during the Apartheid South Africa opposition political
actors suffered a lot in the hands of the minority regime. Many were subjected to
1 Benjamin O. Nwabueze, (1981), The Presidential Constitution of Nigeria, Palgrave Macmillan, London;
Cited by Benjamin J. Odoki, (2005), The Search for a National Consensus: The Making of the 1995 Uganda
Constitution, Fountain Publishers, Kampala, pp.253-4.
2 Elster (1995), op. cit., p.395.
44
“political violence, torture, abduction, murder and assault”1 and their close kin
could have suffered the same fate. It is this atrocious background that must have
compelled them to focus on the need to overturn the oppressive Apartheid system
than jostling for personal gains. Additionally, the Constitutional Assembly began
its work immediately after elections; just 7 days of the commencement of the
Senate sessions.2 They thus embarked on the task early enough before they could
be affected by what Professor Nwabueze terms “the corruptive influence of
power.”3 They were still thinking about the people and fate of their own country.
These special circumstances make the South African Constitutional Assembly an
isolated and unique case. For the experience has shown that entrusting such an
important task exclusively to the power wielders hardly yields any positive
returns.
Secondly, the method is also faulted on another firmer front, that is, it violates the
cherished doctrine of constituent power. As severally stated, constituent power
belongs to the people generally. Any public official or governmental organ like
Parliament cannot exercise that power unless it is specifically authorised by the
people to do so. Members of the constituent assembly must be elected by the
people for the specific purpose of making a constitution.4 And, as Justice Ringera
held, members of a constituent assembly who were not elected by the people
cannot claim to be the representatives of the people.5 Thus, a constituent assembly
that is entirely formed by MPs who were not elected for that particular purpose is
far off the mark. However, if members of an ordinary legislature are authorised by
the people to exercise constituent power no valid objection may be raised. In the
election that was held on 21st October 1945, the French people elected their
deputies and also were asked: “Do you want the assembly elected today to be a
constituent assembly?”6 It is recorded that “96% of the voters answered Yes.”7
1 Steven Robins, “The 2011 Toilet Wars in South Africa: Justice and Transition between the Exceptional
and the Everyday after Apartheid,” in Development and Change, 2014, Vol. 45, No. 3, pp. 479–501 at p.
481.
2 Section 68(3) of the Interim Constitution of South Africa, 1993.
3 Benjamin O. Nwabueze, “Strengthening the Foundations and Institutions of Democracy in Africa” on
http://nigerianlawguru.com/articles/constitutional%20law accessed on 3rd July 2016.

4 See, Nwabueze, (1981), cited by Odoki, (2005), op. cit., pp.253-4.

October 2016.
7 Ibid.
45
Somewhat similar to this popular authority can be said of the South Africa’s
Constitutional Assembly (1994-6). It was agreed in the negotiations involving a
broad-spectrum of stakeholders that a constitution would be made by MPs. Even
in the 1993 elections it was known by the general populace that the elected
members of the National Assembly and Senate would form the Constitutional
Assembly immediately after the election. This, it is opined, meets the test of “being
elected for that particular purpose.” It can also be asserted that they had all
necessary authority and mandate in that the people of South Africa had delegated
constituent power to them on that occasion.
Thirdly, the model does not provide for an opportunity to balance interests within
the Assembly. Thus, if one political party dominates the legislature as it is
common, then the assembly would also be eclipsed by such party. In contrast, the
diversely composed assembly would afford an opportunity to prevent certain
strong groups from taking an upper hand in the assembly. As noted earlier,
constitutional review processes failed in Iceland, Eritrea and Tanzania partly
because of the dominance exerted by the respective ruling political parties that
commanded the overwhelming majority. Domination of an assembly by one group
ordinarily makes consensus-building difficult. More seriously, a constitution
adopted by such assembly is likely to address the concerns of the dominant group
alone and probably will help it in perpetuating and imposing its partisan interests
on the entire population. Such constitution can hardly enjoy any legitimacy or
foster any longevity and stability.
Moreover, the model is likely to produce undesirable outcomes especially in a

country that draws its chief members of the executive from the legislature. It is
common knowledge that in countries that still retain the so-called “Westminster
constitutional model” (that is the British constitutional system), members of the
Cabinet are ordinarily drawn from the legislature. Australia, Britain, Canada,
Ghana, India, Malawi, Tanzania, Uganda, and Zimbabwe provide examples of
countries whose ministers are drawn from Parliament. In such a country, resolving
or converting a legislature into a constituent assembly automatically gifts all
ministers a place in such assembly. This is what happened in Kenya and Tanzania
in 2003 and 2014 respectively. Inclusion of all chief government operatives in an
assembly ordinarily gives them an unfair advantage to control debate and bend
the process to their favour. It normally frustrates people’s efforts to reform their
46
government by peaceful means. It stands to be asserted that the control of a

constituent assembly or the constitutional reform process generally by those in
power is a violation of the principle of constituent power. It is the people generally
who have the right to constitute the government for their welfare. Again, in
countries whose cabinets are drawn from the legislature it is the MPs who make
decision to enact constitutive legislation. They also participate in the process of
legislation-making in the legislatures. This gives them an opportunity to dictate
affairs in their favour. For this reason, exclusion of MPs from constituent
assemblies becomes enormously difficult.
Lastly, the conversion model definitely results in an assembly wholly composed

of politicians. Undeniably, a constitution-making by its very nature is a political
process. For this reason, politicians are indispensable in such process.
Nevertheless, having a constituent assembly composed of politicians entirely is an
unwelcome move, to say the least. Constitution-making, being a form of
deliberative democracy, calls for the diversity of not only personnel but also
different ideas across the nation’s political, economic and social landscape. It
entails setting up a constitutional order that not only attempts to resolve the
existing political, economic and social challenges but also charts out the way for
the future. This may include setting up a political system that attempts to redress
the existing political and social injustices, unify a nation in case of disharmony,
create democratic and inclusive institutions, and lay out a plan for future
prosperity. As Professor Elster maintains, members of a constituent assembly bear
a huge responsibility to fairly represent the existing citizens, those in the wombs,
and others who will be conceived in future.1 Indeed, it is a huge public and
patriotic responsibility and unselfish calling that requires joint effort.
It would be unrealistic to think that politicians acting single-handedly can

competently carry out this responsibility. In the words of Professor Elster,
“Constitution-makers … legislate mainly for future generations, which have no
representatives in the constituent assembly. It is part of their task to look beyond
their own horizon and their own interests.”2 On the contrary, the experience
gained from the constitution-making processes in Kenya (1997-2010) and Tanzania
1 Jon Elster, “Forces and Mechanisms in the Constitution-Making Process,” in Duke Law Journal, 1995
Vol. 45 No 364, pp.364-396 at p.394.
2 Ibid.
47
(2011-4) has demonstrated that politicians were much concerned with short-term
issues especially the impending elections than the future destinies of their nations.1
Therefore, it is fundamental that a constituent assembly should include different
professionals, interests, and diverse views, and this particular goal cannot be
achieved through the absolute conversion model.
Undoubtedly, this model is problematic. Why then do states prefer it? As stated,
convenience, urgency and economic reasons have been cited for its justification.
But, to a large extent, it resolves to the question ― who makes political decisions?
The answer is that it is the politicians in power. As Prof Auer asserts, it would need
an extraordinary compulsion for the political elites to give up the power to
determine the fate of a country.2 As already noted, in a country where ministers
are drawn from the legislature it is extremely difficult to exclude MPs from a
constituent assembly. They are the ones who make key political decisions
including approving proposed bills relating to constitutive legislation. They also
take part in the parliamentary sessions. This arrangement puts them in a pole
position to defeat any suggestion of their exclusion. Kenya and Tanzania are a
perfect example. All pieces of legislation in the two countries were hugely
determined by MPs, some in their capacity as ministers and MPs. For this reason
the constituent assembly of each country included MPs who formed the majority.
 The Conversion-Appointment Model

A combination of conversion and appointment has also been applied in forming
constituent assemblies. It was this method that was applied in constituting the 2014
Tanzanian Constituent Assembly. A statute declared all members of the Union and
Zanzibar legislatures to be members of the Constituent Assembly.3 As a result, this
category of members formed the majority of the assembly. The country’s Union
President appointed the second category in agreement with the President of
Zanzibar by virtue of the same statute.4 It included persons drawn from NGOs,
FBOs, political parties, higher learning institutions, groups of people with special
needs, farmers and pastoralists associations, and any other group representing
1 See generally, Jill Cottrell & Yash Ghai, “Constitution Making and Democratization in Kenya (2000–
2005)”, in Democratization, 2007, Vol.14, No.1, pp.1-25.
2 Andreas Auer, “Itineraries of an idea: a constitutional convention for Cyprus,” in Journal of Balkan and
Near Eastern Studies, Vol. 11, No. 4, 2009, pp. 359-362, at p.360.
3 Section 22(1) (a) & (b) of the Constitutional Review Act, Cap 83.
4 Section 22 (1) (c) and (4), ibid.
48
people with common interests.1 The effect of conversion or resolution of the

legislature into a constituent assembly has been considered already. It remains to
evaluate the appointment mechanism. To begin with, this mechanism offers at
least two advantages. First and foremost, it brings to the assembly certain experts
in different fields or persons whose valuable experience in constitutional law,
political affairs, public affairs generally, and other fields, is needed. Such
personalities could be lacking in Parliament and in case of elections to a constituent
assembly they might be unwilling to participate in the politicised elections. Even
if they participate, the chances of being elected are very thin due to their political
inexperience and the fact that the electorate would normally prefer “political stars”
to the unknown or less-familiar technocrats. Again, in a situation where corruption
has consolidated itself into a societal norm only those who are versed in the dark
art and whose pockets are sufficiently deep stand the chance of being elected. For
these reasons, the level of expertise in the assembly can be conveniently enhanced
through appointments.
Second, appointments could remedy the challenges associated with conversion

and elections. Representatives of political or social groups which are not
sufficiently represented in Parliament (in the case of conversion) or those which
did not fare well in the elections could be appointed. In such case appointments
provide a mechanism for balancing interests and enhancing diversity in an
assembly as well as making a process more inclusive. The underlying assumption,
of course, is that the appointing authority will act impartially. But there is a danger
that lurks around rather menacingly. The practical experience has indicated that,
as Yoweri Museveni argues, no political actor is neutral.2 The formation of the 1991
Ghanaian National Consultative Assembly in November 1991 is quintessential in
this regard. According to the Consultative Assembly Law, 19913, one of the
categories of its members was 22 government appointees. The military
government under the Provisional National Defence Council (PNDC) appointed
pro-PNDC members and excluded those who were perceived as its opponents.4
Again, in order to deny representation to certain rival political organisations, non-
1 Section 22(1) (c), ibid.

2 Museveni, op. cit., p.107.
3 P.N.D.C.L. 253.
4 Mawuse Hor Vormawor and Raymond Atuguba, “Civil Society and Constitutional Reform in Africa:
A Case of Ghana” in Tyanai Masiya and Charles Mutasa (eds.), (2014), Civil Society and Constitutional
Reforms in Africa, MWENGO, Harare, pp.58-97, at p.86.
49
political organisations and groups like butchers, hair-dressers, traditional caterers,

fish-mongers, drinking and shop-bar owners were represented in the Assembly.1
The way the Assembly was composed provoked condemnation from the Ghanaian
Bar Association, the National Union of Ghana Students (NUGS), and the
Movement for Freedom and Justice (MFJ).2 This was one of cases in which the
statutory appointment power was misused.
The controversy over appointments relating to membership to a constituent

assembly also occurred in Tanzania in 2014. As already observed, the law provided
for two categories of members to the assembly: first, MPs, and second,
representatives of the civil society organisations.3 Oddly, it was not the
organisations that were mandated to select or elect their representatives. Instead,
such power was legally vested in the two presidents (that is the President of the
United Republic of Tanzania and the President of Zanzibar).4 When the list of 166
appointees was made public on 7th February 2014, it became evident that partisan
interests had overly dictated the decisions. The names of the supporters of the
ruling party (CCM) overshadowed others. One of the oft-cited cases was the
inclusion of a veteran politician and well-known CCM cadre, Mr. Kingunge
Ngombale Mwiru, who was masked as a representative of traditional healers. 5 It
would appear that the intention was to strengthen the ruling party’s control in the
assembly. Of course, to many, the association of many names on the list with
certain civil society organisations or professional bodies sounded only as a fig leaf.
It was a serious mistake. In sum, these two cases, Ghana and Tanzania, show,
rather vividly, that appointment method is prone to abuse.
Speaking generally, in principle, appointments are a useful tool in constitution-

making. Through them, certain individuals who can enrich decision-making in an
assembly may be secured. When properly utilised, they can balance interests in an
assembly and prevent the undesirable dominance by one or certain groups. More
1 Ibid., p.86. See also, Jonathan Wheatley, “Constitution-Making in West Africa: Keeping the President
in Check,” in Jonathan Wheatley and Fernando Mendez (eds.), (2007), Patterns of Constitutional Design:
The Role of Citizens and Elites in Constitution-Making, Routledge, London, pp.69-86, at p. 74.
2 See, Vormawor and Atuguba, op. cit., pp. 85-86.
3 Section 22(1) (a), (b), & (c) of the Constitutional Review Act, Cap 83.
4 Section 22 (1) (c) & (4), ibid.
5 See, Masembe Tambwe, “Tanzania: Constituent Assembly Members Named”, Daily News (Tanzania),
7th February 2014.
50
importantly, they can give an assembly a national outlook and thus facilitate and
hasten consensus-building within the assembly itself and the nation generally.
However, as already hinted, appointments are susceptible to abuse. In a partisan
political environment, appointments may be ruinous to consensus-building and
efforts to create a neutral constitutional order. Thus, it is recommendable that in
order to ensure that appointments are properly made all stakeholders or political
actors have to agree on the manner such appointments will be made. Alternatively,
identified stakeholders could propose the names to the appointing authority. In
any case, legislative recognition of any such agreement provides a secure
foundation for consensus.
Having considered the appointments, something needs to be said, though briefly,

about the “conversion-appointment model” as a whole. The challenges of
converting the legislature into a constituent assembly far outweigh any advantages
associated with such method. Biased appointments can exacerbate the situation.
This model is likely to promote partisan interests of one political group to the
detriment of others. It puts a constitutional review process in the hands of rulers
who are likely to seize the opportunity to prevent any meaningful constitutional
reforms. By and large, it does not provide a positive environment for developing
a progressive constitution.
 Election Model
 Overview
Composition of a constituent assembly through elections is a method that
represents democratic aspirations of a polity. In contrast with other methods, it
resonates well with the doctrine of popular sovereignty which partly holds that
constituent power in a state resides in the people generally. The election of
members of a constituent assembly by the people symbolises and attests to the fact
that people are in the driving seat. Likewise, the traditions enunciated by
constitutional conventions in Massachusetts and New Hampshire in the 18th
Century require the holding of a constituent assembly to be authorised by the
people.1 Closely related to this principle, is the idea that a constitution should be
made by the people’s representatives who have been elected for that particular
51
purpose.1 As it has been already remarked, the idea received the approval of the
United Nations Human Rights Committee in the case of Marshall v. Canada.2 To a
great extent, elections represent conformity with these principles. The totality of
the foregoing is that elections are held with special veneration when it comes to
democratic constitution-making. The significance of elections apart, some
explanation about the typology of elections is necessary. Constituent Assembly
elections that have been held are either direct or indirect.
 Indirect Elections
Indirect election denotes the choice of representatives by a certain institution rather
than the people themselves.3 In other words, it is a choice of representatives
through an agent. For instance, it was not the people but state legislatures that
elected the 55 delegates of the 1787 American Constitutional Convention.4
Furthermore, the Indian Constituent Assembly (1946-9) was mainly composed
through indirect elections.5 The majority of its members were elected by provincial
legislatures.6 Likewise, the provincial legislatures set up by the British in Pakistan
are the ones that elected the members of the Pakistani Constituent Assembly (1947-
56).7 Similarly, the 1948-9 German Constituent Assembly or “the Parliamentary
Council” (Parlamentarischer Rat8), as it was actually called, was constituted of
delegates (chiefly ministers, government officials and academics) who were
elected not by the people directly but by legislative bodies.9 In this connection, it is
pertinent to observe that its members also refused to submit a draft constitution to
a popular referendum.10 Instead, the same legislative bodies ratified the draft.11
Remarkably, this kind of constitution-making was elitist in nature as it excluded
ordinary citizens. It would appear that the distrust of the masses was borne out of
1 See, Jameson, op. cit., p.1.

4 See generally, John R. Vile, “The Critical Role of Committees at the U.S. Constitutional Convention of
1787”, in The American Journal of Legal History, Vol. 48, No. 2 (Apr., 2006), pp. 147-176.
5 See, Brandt, et al., op. cit., p.241.
6 See, ibid., p.241.
7 See, E. Van Donzel, (1994), Islamic Desk Reference: Compiled from the Encyclopaedia of Islam, E.J. Brill, New
York, p. 338.
8 The phrase is German and the equivalent of “Parliamentary Council.”
9 Inga Markovits, “Constitution Making After National Catastrophes: Germany in 1949 and 1990”, in
William & Mary Law Review, Vol.49; Issue 4, pp.1307-1346, at p.1309.

10 Ibid.
11 Ibid.
52
the calamities caused by Hitler, who was supported by the masses. It was felt that
the masses needed some guidance from elites.
In Africa, constituting constituent assemblies by indirect elections is not an

unfamiliar modality. In Ghana, the 1991 Consultative Assembly was partly formed
by membership that was elected indirectly. According to the Consultative
Assembly Law, 1991,1 one category of the delegates (i.e. 117 delegates), was to be
elected by district assemblies.2 This was an indirect election. This modality was
also followed in Kenya in 2003. Apart from other categories, county councils
elected three delegates to the 2003-4 Kenyan National Constitutional Conference
from each administrative district directly instead of the people.3 According to
Gathii, a total of 210 delegates were elected through this manner.4
Indirect elections can be organised in a very short time and are relatively cheaper
when compared to the direct ones. However, they are inherently undemocratic in
that they take away the people’s right to elect their representatives. Worse still,
they fall foul of the doctrine of constituent power. As Odoki asserts, “The right to
change a constitution should remain with the people, just like the right to elect
their leaders.”5 To permit government functionaries to choose delegates of a
constituent assembly is to turn a people-centred constitutional reform process into
a government-controlled one. The consequence is that people’s chances of
changing the framework of their government and influencing their welfare could
be seriously dented.
 Direct Elections
Another common, and probably more suitable, form of an election is direct
election. It is a form of an election in which the electorate choose their
representatives to a constituent assembly through the ballot or some other
mechanism. Contrary to indirect elections in which members are elected through
an agency, direct elections empower the electorate directly. Elections of constituent
1 P.N.D.C.L. 253.
2 See also, Tapan Prasad Biswal, (1992), Ghana: Political and Constitutional Developments, National Book
Centre, New Delhi, p.215.
3 Section 27(2) of the Constitution of Kenya Review Act.
4 See, James Thuo Gathii, “Popular Authorship and Constitution Making: Comparing and Contrasting
the DRC and Kenya”, in William and Mary Law Review, Vol. 49, No. 4, 2009, pp.110-1137, p.1118.
5 Odoki, op. cit., p.253.
53
assemblies have a long history. In 1848, two elections to constituent assemblies

were held in France1 and Prussia (part of the present day Germany).2 Also, an
election to the Russian Constituent Assembly was held in 1917. 3 As noted earlier,
the practice of constitution-making through constituent assemblies is very
entrenched in Latin America. Constituent Assembly elections and popular
referendums are also very common on the continent. Uniquely, constituent
assemblies of Nicaragua (1984), Ecuador (1997-8), and Bolivia (2006-7) were
entirely formed by the membership derived from direct popular elections.4
In Africa, all-powerful or imperial presidents ordinarily take major political

decisions. Moreover, in countries that inherited the British constitutional
traditions, the legislative bodies have taken the centre-stage in handling important
constitutional and political issues. More frequently than not, people have been
kept on the side lines, so to speak. Thus, in such countries, constituent assembly
elections and referendums are only a recent development. But in countries with
French constitutional background things have been slightly different. Way back in
1946, France allowed its African colonies and others to hold elections to elect
delegates to represent their territories in the 1946 French Constituent Assembly in
Paris.5 Again, Tunisia held an election to a constituent assembly as early as in 1956,
just five days after gaining her independence from France on 20th March 1956.6 In
1959, the short-lived Federation of Mali was established in Dakar, Senegal, through
a Constituent Assembly whose delegates were obtained in elections held in
Senegal, Soudan, Dahomey (now Benin), and Upper Volta (now Burkina Fasso).7
1 See, Malcolm Crook, “Universal Suffrage as Counter-Revolution? Electoral Mobilisation under the
Second Republic in France, 1848–1851”, Journal of Historical Sociology Vol. 28 No. 1 March 2015, pp.49-
66, at p.49.
2 Donald J. Mattheisen, “Association Voters and Parliaments in the German Revolution of 1848: An
Analysis of the Prussian Constituent Assembly” in Central European History, Vol. 5, No. 1 (Mar., 1972),
pp. 3-22.
3 See generally, William A. Dando, “A Map of the Election to the Russian Constituent Assembly of
1917,” in Slavic Review, Vol. 25, No. 2 (Jun., 1966), pp. 314-319.
p.241.
5 See, Kevin Shillington (ed.), (2005), Encyclopaedia of African History, Vol. I (A-G), Fitzroy Dearbon, New
York and London, p.100.

6 Alaya Allani, “The post-revolution Tunisian Constituent Assembly: controversy over powers and
prerogatives”, The Journal of North African Studies, 2013 Vol. 18, No. 1, pp. 131–140, at p.131.
7 Amos J. Peaslee, (1974), Constitutions of Africa, Vol. I, Rev. 4th ed., Martinus Nijhoff, The Hague, p.646.
54
Furthermore, in 1962 a constituent assembly election was held in Algeria.1 Only

recently, Tunisians went to polls on 23rd October 2011 to elect their representatives
in a constituent assembly. Notably, the 2011 Tunisian constitution-making process
was triggered by the popular revolution known as the “Jasmine revolution” or
Tunisian revolution”, which resulted from mass demonstrations (17th December
2010 ─ 14th January 2011), leading to the eventual fall of President Zine El Abidine
Ben Ali’s government.2 The events in turn inflamed insurgencies in Syria, Libya,
Yemen, Egypt and Bahrain as well as huge demonstrations in Algeria, Iraq, Jordan,
Kuwait, Morocco, and Oman. This wave of upheavals and massive civil
disobedience came to be known as “the Arab Spring.”3
Outside the French sphere of influence, popular elections in connection with

constituent assemblies have been a rarity in Africa. Namibia held Constituent
Assembly elections on 11th November 1989 under the supervision of the United
Nations Transition Assistance Group (UNTAG).4 UNTAG was a United Nations
peace-keeping force which had the responsibility to oversee the transition to
democracy in the country.5 Elsewhere, Ethiopia has also gone into record as one a
few countries that held popular constituent assembly elections. In the words of
Berhanu, “On 5 June 1994, the Ethiopian people went to the polls in the first
national election in history to choose a Constituent Assembly.”6 In East Africa,
Uganda became the first British ex-colony to break away from the British traditions
of entrusting major political decisions to Parliament. Its participatory constitution-
making process included a direct election to a constituent assembly that was held
throughout the country in 1994.7 Interestingly, 51 percent of all MPs who contested
in this election lost.8 This indicated that the claim that Parliaments always enjoy
popular consent to make constitutions is fallacious. It also supported the principle
1 See, Dieter Nohlem et al. (eds.), (1999), Elections in Africa: A Data Handbook, Oxford University Press,
London, p.43.
2 Ahmed Aghrout, “The National Constituent Assembly election in Tunisia, October 2011”, Notes on
recent elections / Electoral Studies, 2014, Vol. 34, pp. 291–379, at pp.294-295.
3 Ibid.
4 Department of Public Education, (1995), Basic Facts About the United Nations, United Nations, New
York, at p.244.
5 Ibid.
6 Kassahun Berhanu, “Ethiopia Elects a Constituent Assembly” in Review of African Political Economy,
Vol. 22, No. 63 (Mar., 1995), pp. 129-135, at p.129.

7 The election was conducted in accordance with the Constituent Assembly Statute, 1993.
8 Aili Mari Tripp, “The Politics of Constitution Making in Uganda”, in Laurel E. Miller, with Louis
Aucoin (eds.), (2010), Framing the State in Times of Transition: Case Studies in Constitution Making, United
States Institute of Peace Press, Washington DC, pp.158-175, at p.167.
55
that a constitution should be made by persons who have been elected for that very
particular purpose.1 Being an MP does not entitle one to an automatic right to
participate in constitution-making in a constituent assembly unless he or she is
expressly authorised by the electorate.
It ought to be stressed that a constituent assembly is not Parliament. Neither is

constituent power the same as legislative power for which MPs are elected and
represent the people for. While the power to make ordinary laws is generally
vested in Parliament, constituent power remains with the people.2 In 2014, in
Tanzania, the name “Constituent Assembly” was wrongly translated in Kiswahili
to be “Bunge la Katiba” (Constitutional Parliament). This wrong translation
infused some erroneous thinking that all MPs had the right to attend. People
ordinarily associate MPs with “Bunge.” Consequently, not a token of resistance
was put against the law that declared all MPs to be members of the Assembly. And
when it was called some MPs regarded non-MPs members as strangers and
intruders.3 It was commonly thought that “Bunge la Katiba” was for MPs.4 Prof
Kabudi opined that the correct Kiswahili equivalent of “constituent assembly” was
“Mkutano wa Taifa wa Kikatiba”, not “Bunge la Katiba.”5 It is agreeable that the
name “Bunge la Katiba” was misleading and Mkutano wa Taifa wa Kikatiba made
more sense, and had it been adopted, it would have put the assembly in its proper
perspective.
 First-Past-the Post and Proportional Representation Elections

Apart from being classified as “direct and indirect,” elections may also be
categorised as first-past-the post (FPP) and proportional Representation (PR).
Some explanation has already been given about FPP and PR. FPP focuses on the
majority because whoever wins even by insignificant margin becomes the victor
and the other contestant loses everything. In this system, the winner takes all; and
1 See, Jameson, op. cit., p.1. See also, Marshall v. Canada, Communication No. 205/l986, U.N. Doc.
CCPR/C/43/D/205/l986 at 40 (1991).
2 Odoki, op. cit., p.253.
3 One member of the Constituent Assembly expressed to the present author that MPs considered other
members as mere intruders and thought they had no right to be part of the Assembly as they had never
elected by the people.
4 The member (ibid) noted they were being teased frequently by MPs, “Nani kakupigia kura ili uje
kwenye Bunge hili? Kaa kimya” (Who elected you? You better remain silent).
5 Prof Kabudi expressed this opinion in 2013 through one of the radio programmes which were
intended to educate the people about the draft constitution that had been prepared by the
Constitutional Review Commission (Warioba Commission).
56
the loser and his or her voters lose everything. The effect of this system is that it
gives the majority the right to dominate or even exclude others from a constituent
assembly. An assembly, which is not sufficiently representative and inclusive, is
unlikely to produce a constitution that is acceptable to all segments of the citizenry.
On the contrary, PR allocates seats in a constituent assembly to various political or
other groups according to the proportionate number of votes obtained. As already
noted, both Elster and Jha emphasize the importance of PR system in composing
constituent assemblies in order to make them more representative and inclusive. 1
Unfortunately, it is the majority system that has been frequently preferred by many
countries which have conducted elections to constituent assemblies. In Nepal, the
two systems were combined.2 This is a positive development in the practice of
constitution-building and making.
 Evaluation of the Election Model

As observed above, the election model rhythms well with the tenets of democracy
and constituent power. It is chiefly supported for this reason. However, there have
been objections to direct elections as well. To begin with the arguments in their
support, Brandt et al., make a good summary.3 According to them, the model is
democratic; “it can lead to fair representation;”4 and that “it is likely to be
acceptable to people.”5 As to arguments against it, the first charge is that they are
expensive and they take much time in their preparation.6 Participatory
constitution-making is, by its nature, an expensive undertaking. In this connection,
Moehler asserts: “Undeniably, the participatory model of constitution-making
requires more time and resources than do traditional models, which are usually
limited to parliamentary debate, a national conference or closed-door expert
deliberations.”7 The second stricture against direct elections is that if the electoral
system is faulty it is unlikely to produce a representative assembly and such an
assembly may be interested in preserving the faulty electoral system.8 This is so in
1 Elster (1995), op. cit., p.395. See also, Shefali Jha, “Rights versus Representation: Defending Minority
Interests in the Constituent Assembly”, in Economic and Political Weekly, Vol. 38, No. 16 (Apr. 19-25,
2003), pp. 1579-1583, at p. 181.
2 See generally, Acharya, op. cit., pp.45-86.
3 See, Brandt, op. cit., p.240.
4 See Ibid.
5 Ibid.
6 Ibid.
7 Devra C. Moehler, “Participation and Support for the Constitution in Uganda,” in The Journal of Modern
African Studies, Vol. 44, No. 2 (Jun., 2006), pp. 275-308, at p.280.
8 See Brandt, et al., op. cit. p.240.
57
a country with an electoral system that favours the group in power. In such a
system, only the contestants sponsored by the ruling party or group are likely to
win. The likelihood is that the assembly will be entirely composed of, or dominated
by, supporters of that party or group. The effect is that efforts to establish a national
consensus and a neutral constitutional order would be foiled.
The third critique is that the elected members are likely to stand by the instructions
of a political party and render consensus difficult.1 This happens in a partisan
environment where one political group wants to maintain its grip on power. For,
although elections were not held, the ruling party dominated the 2014 Constituent
Assembly of Tanzania as its members felt obliged to stand by the policy of their
party. The fourth challenge is that some competent and experienced persons who
are not interested in the politics of elections are unlikely to participate. The fifth
problem is that direct elections are more likely to produce an-all politicians-
constituent assembly.2 The reason is that it is the politicians who are the key actors
in the politicised elections. As noted earlier, constitution-making is a political
process. But, for the reasons already stated, it is undesirable for a constituent
assembly to be solely composed of politicians. Thus, these criticisms point to the
conclusion that much as direct elections are democratic they are unlikely to satisfy
the needs of composing a representative, inclusive, and diverse constituent
assembly. They must be combined with other models. On this account not many
nations have solely relied on elections in recent years. It is the recently held
constituent assemblies of Nicaragua (1984), Ecuador (1997-8), and Bolivia (2006-7)
that stand out as exceptions as they were entirely formed by the membership
derived from direct popular elections.3
 Multi-Dimensional Model
Not a single model, as considered above, is by itself sufficient to satisfy the needs
of consensus-building and legitimacy of a constitution. Consequently, the
emerging practice is to form a constituent assembly pragmatically, that is, upon
consideration of many factors. It is proposed to examine the composition of certain
constituent assemblies whose formation employed a number of modalities. In this
respect, a brief discussion is made on the constituent assemblies of Ghana, Uganda,
1 Ibid.
2 See, Brandt, et al., op. cit., p.240.
3 Ibid., p.241.
58
Kenya, and Nepal. The 1991 National Consultative Assembly of Ghana was
composed of 258 members in total.1 The modality of composition combined three
different selective methods. The first method was non-executive appointment.2 62
different corporate organisations appointed 121 delegates. The second method was
executive appointment as 22 delegates were chosen by the then ruling military
Council (i.e. PNDC). The last method was indirect elections through district
assemblies, and thus, 117 members were elected through this manner. It is to be
noted that the 1991-2 Ghanaian constitution-making process was very short; it took
just one year. It seems that the modality of composing the assembly was meant to
expedite the process. In fact, in contrast with direct elections, both appointments
and indirect elections can be accomplished in a short time and with much less cost.
Another feature, instead of clinging to the executive appointments, the military

junta allowed as many as 117 members to be appointed by corporate organisations.
This is praiseworthy and unprecedented on the African political landscape. It
made the Assembly more representative and accommodative of various interests.
However, such mode of selection can serve the democratic demands if it is
acceptable to the people. Otherwise, it is likely to produce an elitist assembly. It
also stands to be argued that while many appointments were done by the civil
society organisations, there is no guarantee that such organisations represented
the people of Ghana. They could be justified if they enjoyed popular approval.
Furthermore, the composition modality excluded conversion that is more
problematic in principle and practice.
In East Africa, Uganda became the first country to adopt a constitution through a
highly participatory constitution-making process. It also stands out to be the only
country in the region whose constituent assembly (1994-5) was greatly
representative and inclusive. Unlike Ghana, delegates directly elected by the
people largely formed the Ugandan Constituent Assembly. The law, the
Constituent Assembly Statute of 1993, provided for a two-fold model: direct
elections and executive appointments.3 The direct elections were organised in two
different ways: popular and interest-based elections. Popular elections for the
Constituent Assembly were held in the electoral districts in March 1994. 4 214
1 The Consultative Assembly Law, 1991, P.N.D.C.L. 253.

2 Ibid.
3 See, section 4(2) read together with the 1 st and 3rd Schedules of the Constituent Assembly Statute, 1993.
4 Tripp, op. cit., p.167.
59
delegates were elected through this way.1 Other delegates were elected by various
interest groups: Women Councils in each district, the National Resistance Army
(NRA), the National Organisation of Trade Unions, the National Youth Council,
the National Union of the Disabled People of Uganda and the four political parties
that participated in elections held on 10th December 1980. These included the
Conservative Party (CP), the Democratic Party (DP), the Uganda Patriotic
Movement (UPM) and the Uganda People’s Congress (UPC).2
Surprisingly, while campaigning on basis of political affiliation was prohibited, the

pre-existed political parties were legally given the right to be represented.3
Undoubtedly, decision to supplement popular elections with elections by the
identified interest groups was meant to cure the drawbacks of popular elections
that are likely to shut out minority groups. This design enhanced inclusiveness in
the Assembly. Remarkably, there was no such thing as an automatic participation
in the Assembly because, for instance, one was a member of legislature. To join the
Assembly, all interested MPs had to throw themselves into elections the
consequence of which, as noted, many suffered loss. Thus, about 65 delegates had
to be appointed through this manner although UPM and UPC did not elect their
representatives.4 Prohibition of political parties and activities was deemed
undemocratic.5 Another aspect, which deserves comment, is the inclusion of
soldiers in the Assembly. Probably, the particular circumstances that obtained in
Uganda at the time warranted such inclusion. It has already been observed that
the participation of the military officers in political affairs was part of an
integrationist policy whose aim was to achieve stability.6
However, generally speaking, the political nature of debates in a constituent

assembly makes participation of soldiers highly undesirable. It is absolutely
necessary for an army to observe the principle of political neutrality. The army has
to be kept outside the sphere of the competing political ideologies. But this is not
to say that soldiers should not participate in a constitution-making process as other
citizens. It is their constitutional right to participate but it would be going too far
1 Ibid.
2 See, section 4(2) and the 1st Schedule of the Constituent Assembly Statute, 1993.
3 Tripp, op. cit., p.167.
4 Ibid., p.165.
5 See, ibid.
6 See, Odoki, op. cit., p.5.
60
to suggest that every citizen has the right to participate in constituent assembly
debates directly. As already noted, this right is ordinarily realised through
representation. Furthermore, soldiers as well as civilians have the right to air their
opinions before a constitutional commission or some other body designated for
that purpose.
The second modality that was combined with elections, as observed, was the
executive appointments. According to section 4(2) (c) of the Constituent Assembly
Statute, 1993, the President, acting on the advice of the Cabinet, could appoint not
more than ten delegates. Two things are commendable in this respect. First, in
contrast with the 2014 Tanzanian Constituent Assembly in which a big number of
representatives of interest groups (i.e. 166) was to be procured through executive
appointments, the Ugandan law limited such number to ten. Again, the President
was not given a blank cheque; he was compelled to consult the Cabinet.1 As
already noted, appointments are essential in forming a balanced and inclusive
assembly. Furthermore, experts and experienced individuals could be secured
through appointments. The challenge to these benefits is the likelihood of abuse of
the appointment powers. Thus, it was a positive move for the Ugandan legislation
to compel the President to consult. Generally speaking, appointment powers
would normally serve a useful purpose if they are exercised impartially, in
accordance with the consensus of stakeholders, and meet the popular legitimacy
test, that is, acceptance by the general public. While no constitution-making
process could be regarded as totally fool-proof, the 1989-95 Ugandan process was
very progressive. It is clear that efforts were directed to making the 1994-5
Ugandan Constituent Assembly more representative and inclusive. This aspect,
when considered together with the highly consultative process, earned Uganda a
global commendation. In this connection, Moehler asserts, “The Ugandan
constitution-making process received widespread praise from both the
international community and Ugandans themselves.”2 It is, in the opinion of
Kanyeihamba, the best legacy of NRM to Uganda.3
Another East African state that formed a constituent assembly recently is Kenya.
The 2003-4 National Constitutional Conference consisted of delegates obtained
1 Section 4(2) (c) of the Constituent Assembly Statute, 1993.

2 Devra C. Moehler, “Participation and Support for the Constitution in Uganda”, in The Journal of Modern
African Studies, Vol. 44, No. 2 (Jun., 2006), pp. 275-308, at p.281.
61
through conversion, ex-officio participation, indirect elections, and non-executive

appointments. The list of the delegates as provided by the law deserves full
reproduction. Section 27(2) of the Constitution of Kenya Review Act partly
provided:
The National Constitutional Conference shall consist of –

(a) the commissioners who shall be ex-officio members without the right to
vote;
(b) all members of the National Assembly;
(c) three representatives of each district, at least one of whom shall be a woman,
and only one of whom may be a councillor all of who shall be elected by the
respective county council in accordance with such rules as may be prescribed
by the Commission;
(d) one representative from each political party registered at the
commencement of this Act, not being a member of Parliament or a councillor;
(e) such number of representatives of religious organizations, professional
bodies, women’s organizations, trade unions and non-governmental
organizations registered at the commencement of this Act and of such other
interest groups as the Commission may determine.
This list is fairly long and it was agreed after long drawn negotiations between the
government on one side and political parties and civil society organisations, on the
other. What can then be said of this modality? In the first place, the list represented
requisite diversity in a democratic constituent assembly. It took care of the
country’s geographical areas and wide spectrum of interest groups. In the second
place, the inclusion of the members of a constitutional commission as ex-officio
members of the Conference is laudable. Although Brandt et al. consider this
inclusion as a mistake1; members of a constitutional commission can play a
significant role in a constituent assembly. To debate on a draft constitution without
the benefit of clarification by those who drafted it is to work in the dark. The 2014
Tanzanian Constituent Assembly serves as a good example. Initially, although the
constitutive legislation did not include members of a constitutional commission as
members of the Assembly, it was generally understood that they would be invited
to provide clarifications on the draft they prepared.2 When the Commission issued
p.242.
2 See, section 37(1) of the Constitutional Review Act, 2011 (before it was amended in 2013). According
to that provision the Constitutional Review Commission was to be dissolved after declaration of the
Referendum results. After the amendment the Commission was to be dissolved immediately after
submitting its report to the Constituent Assembly.
62
a draft constitution that displeased power wielders the legislation was amended
to ensure that the Commission would be dissolved and thus deny its members any
opportunity to make clarifications.1
The result was that the Assembly misunderstood some of the provisions in the
Draft Constitution. For example, the phrase “Tunu za Taifa” (national values)
which was used in the draft was thought to mean “national historical artefacts.”
Moreover, the Commission’s draft was based on three-tier government system and
institutions established therein reflected the proposed federal government. On the
contrary, the Assembly adopted a two-tier government system; but in doing so it
committed several blunders essentially due to lack of clarifications from the
authors. In one instance the Assembly omitted the Prisons Service from the list of
armed forces in its draft. Of course, the Assembly just adopted the Commission’s
draft not knowing that the Service was deliberately dropped on account of the
proposed three-tier government system. The adoption of the two-tier government
structure meant that the Service had to be included in the Assembly’s draft. The
Commission members could have assisted in making clarifications and assisting
the Assembly in avoiding such embarrassing mistakes. Therefore, inclusion of
Commission members in the Kenyan National Constitutional Conference was, in
our opinion, a positive move.
Much as it was very wide in its scope of representation, the Kenyan model had
two major drawbacks. Firstly, the model avoided direct elections. It is certainly
unconvincing that the process which took 13 years would totally side-line the
citizenry from selecting their representatives to the Conference. In the words of
Levy, “leaving voters out of a reform process attracts convincing charges that both
the process and the constitution it yields lack legitimacy.”2 This was against the
principle of constituent power. In fact it was held in the case of Njoya and others v
Attorney-General and others,3 by the High Court of Kenya that “one cannot be a
representative of another if the latter has not elected him to do so” and the body
1 Section 11 of the Constitutional Review (Amendment) Act, 2013 amended section 37(1) of the
Constitutional Review Act , Cap 83, provided thus, “ 37.-(1) Upon submission of the Draft Constitution
to the Constituent Assembly under section 20(3), the President shall, by Order published in the Gazette,
dissolve the Commission.”
2 Ron Levy, “Constitutional Codification and Deliberative Voting”, in Robert Blackburn (ed.), (2014),
Mapping the Path towards Codifying - or Not Codifying - the UK Constitution, pp.180-186, at p.180.
3 [2004] 1 EA 194.
63
largely consisting of an unelected membership cannot be a representative one.

Secondly, the inclusion of all MPs in the Conference was counter-productive. It
gave them an opportunity to sacrifice the popular will on the altar of personal
interests. As alluded to earlier, once a constituent assembly is dominated by a
certain group, especially the one that is connected to the government, popular
efforts to change the framework of government are likely to be frustrated. Such
composition takes away any opportunity to change what Kafir describes as
“tyrannical regimes that persistently refused to submit to popular accountability.”1
Jill Cottrell and Prof Yash Ghai have explained the role of MPs in the Kenyan
Conference:
Members of Parliament, or many of them, were not very enthusiastic

supporters of reform either. They did not want exposure even to a largely
theoretical possibility of recall by their constituents, nor restrictions on
the number of terms of office for MPs; they did not want to lose the
possibility of being ministers, or a second chamber that might curb the
power of the assembly they were members of. Generally they were
happier to continue to operate the system they were used to.2
This Kenyan experience replicated itself in the 2014 Tanzanian Constituent

Assembly. It did away with all provisions that proposed to limit the tenure of MPs,
bar them from taking ministerial posts, empower their voters to recall them,
among others. It is to be noted that both processes experienced serious challenges
and the Tanzanian process has particularly stalled. The lesson that can be drawn
from the two processes is that when those in power are given the opportunity to
control a constitutional reform process, the purpose of reforming the government
is destined to fail.
Nepal is another country that employed the multi-dimensional model. Its 2008
Constituent Assembly was truly representative and inclusive. It was composed of
members drawn from an electoral process that combined both FPP and PR
electoral forms.3 Thus, 240 members were elected in an FPP election and 335
members resulted from PR election.4 According to Acharya, “the PR seats among
1 Nelson Kasfir, “Popular Sovereignty and Popular Participation: Mixed Constitutional Democracy in
the Third World”, in Third World Quarterly, Vol. 13, No. 4 (1992), pp. 587-605, at p. 587.
2 Jill Cottrell & Yash Ghai, “Constitution Making and Democratization in Kenya (2000–2005)”,
Democratization, 2007, Vol.14, No.1, pp.1-25, at p.18.

3 Acharya, op. cit., p.48.
4 Ibid.
64
the five major groups based on their existing population: Madhesis (31.2%), Dalits
(13%), indigenous people (37.8%), people from backward regions (4%), and others
(30.2%), out of which each group was required to have 50% women.”1 Being aware
of the drawbacks of elections, the law incorporated a supplementary mechanism,
appointment. Thus, the Interim Council of Ministers appointed 26 members.2 The
governing principle, as Acharya points out, was inclusiveness.3 But the overall
consideration indicates that pragmatism was much in the sight of those who
crafted the Interim Constitution of Nepal, 2007 and the Election to Members of the
Constituent Assembly Act, 2007. When considered with the 2006 New Delhi
Comprehensive Peace Agreement,4 these two legal instruments made the
formation of a representative and inclusive Constituent Assembly possible.
The Nepalese model totally avoided the problematic conversion model. This was
a positive decision that was not learned by Kenya and Tanzania. While this model
can be hailed as pragmatic, inclusive, and representative, a warning needs to be
sounded here. It should be remembered that constitution-making is partly a
nation-building process. It should not only aim to reconcile existing disputes but
also to create a national cohesion as much as it is possible. As Elaigwu and Mazrui
state, nation-building has both vertical and horizontal dimensions.5 According to
them, considered vertically, nation-building denotes “progressive acceptance by
member of a polity of the legitimacy of a central government, and identification
with the central government as a symbol of the nation.”6
When viewed horizontally, as they say, it entails developing the sense of common
belonging by members of a nation and acceptance of other fellow members. 7 The
representation system that extends to embrace ethnic representation, as it was
done in Nepal, might spell a political disaster especially in African circumstances.
African states have always worked to forge national identity out of multi-ethnic
1 Ibid.
2 Ibid.
3 Ibid.
4 Ibid., p.65.
5 J. Isawa Elaigwa and Ali A. Mazrui, “Nation-Building and Changing Political Structures”, in Ali A.
Mazrui and C. Wondji (eds.), General History of Africa. VIII: Africa Since 1935, EAEP, Nairobi, pp.435-
498, at p.439.
6 Ibid.
7 Ibid.
65
identities. To permit ethnic representation and articulation of ethnic interests

would, in our opinion, wreak havoc to the continuing nation-building project.
 Concluding Considerations
A substantial number of pages that have been dedicated to the composition aspect
reflect its enormous significance. This is so because the formation of a constituent
assembly is probably the most challenging aspect of constitution-making. It
requires wisdom, unwavering patriotism, visionary leadership, and guidance of
the established principles. In an ideal situation, a constituent assembly has to be
composed in such a way that unifies a nation and directs it to face an important
task of framing a constitution that not only serves the present generation but also
focuses on the future. It is a task that needs to be approached from an impartial
standpoint. In other words, the task has to be handled in the way that transcends
and breaks away from the narrow confines of partisan politics. The reason for this
is that a constitution is a charter that should reflect and weave the will, aspirations
and sounds of all citizens irrespective of their political, ethnic, religious, regional,
or other affiliations. It is the charter whose existence must rest on non-coercive
popular acceptance. Differently put, it should be a consensually made instrument
which is not imposed by one group over others. Owing to this nature of a
constitution, it is such a big mistake and grave disservice to the nation in question
and future generations to form a constituent assembly on the basis of the biased or
sectarian considerations.
As it has been noted earlier, there is no single constitution-making pattern that

applies to all states equally. Historical, political, economic, and social factors all
count in making decisions about constituent assemblies. Additionally, the time
factor could dictate the manner in which a constituent assembly is to be
established. If a political urgency exists like the desire to form a government
following a revolution or to meet the demands of rebels as stipulated in a cease-
fire agreement, such urgency is likely to determine the manner in which a
constituent assembly is constituted. If conditions of extreme necessity and urgency
do not exist, the multi-dimensional model is the most recommendable approach.
It is the one that can take care of various aspects like consensus-building, balancing
and control of interests, attaining diversity and inclusiveness of an assembly as
well as building the legitimacy of the product (that is a constitution). It is thus
recommended that delegates obtained through a combination of elections,
66
appointments, and ex-officio participation should form a constituent assembly.

This proposal calls for some explanation. The majority of delegates should be
drawn from popular elections and a lesser number from elections conducted by
various interest groups. It is important that interest groups are legally compelled
to conduct elections within their organisations as those in the management
positions might abuse the power of appointment.
Unless it is absolutely necessary, indirect elections are not recommended. They are
less democratic and more seriously they provide an opportunity for rulers to
defeat the popular will by controlling the process for their own advantage. As
discussed, the proportional representation electoral system is the one that suits the
complex dynamics of a constituent assembly. On the contrary, the majority system
might favour the dominant political or other group and thus it should be shunned.
Also, certain delegates ought to be appointed for the purpose of securing
experienced individuals and experts. It is also a useful technique for balancing an
assembly and making it more representative and inclusive. The overriding
principles with regard to appointments are, as noted above, that they must be
exercised impartially, in accordance with the agreement of all key stakeholders
and in the public interest.
Furthermore, ex-officio participation is important especially where other processes

preceded an assembly stage. This is so particularly where there was a
constitutional commission, committee of experts or some other body that collected
public opinions and then prepared a draft. Members of such a body ought to attend
in the assembly for the purpose of making clarifications about the people’s opinion
and the draft which they prepared. Their narrow mandate warrants the denial of
the right to vote to them. The denial would prevent them from controlling the
assembly as their work must be subjected to the scrutiny of an assembly without
any impediments. Lastly, on account of principle and practicality the conversion
method, whether absolute or in combination with other methods, is unsuitable for
any progressive constitution-making process.
Qualification of Delegates
The methodology of composing a constituent assembly has been discussed in some
considerable detail. What should be the qualifications of its delegates or members?
Lack of common practice means there is no common answer to this particular
67
question. Before making any recommendation, a brief survey on the experience of

a few states is necessary. Thomas Jefferson once described the 1787 American
Constitutional Convention as “an assembly of demigods.”1 For his part, de
Tocqueville stated that the Convention “contained the choicest talents and the
noblest hearts which had ever appeared in the New World.”2 Many of its delegates
had sound political experience and public affairs generally. George Washington,
Benjamin Franklin, Alexander Hamilton, and James Madison are some of big
political names that formed the Convention.3 Thomas Jefferson was the
conspicuous absentee. Apart from these political heavyweights, as Carson
observes, “the group included seven former state governors, twenty-eight former
members of Congress, and eight signers of the Declaration of Independence.”4 In
terms of profession, there were 13 large-scale farmers, 2 small farmers, 13 lawyers,
8 merchants, 12 state office-holders, 3 medical men, and 1 diplomat.5 As Sheffer
notes, the majority of these delegates had been educated in Europe.6 They were,
thus, well acquainted with the theories on government by Aristotle, Plato,
Blackstone, Hobbes, Locke, Machiavelli, and Montesquieu, among others.7 It is
also noteworthy that George Wythe, the second professor of law in the English-
speaking world, was in attendance, albeit briefly.8 Overall, the Convention was
composed of the delegates who were well-versed in public issues.
While the 1787 American Constitutional Convention was considered as the

“assembly of demigods” the 1848-9 Frankfurt Assembly was derisively referred to
as “the assembly of professors.”9 However, accounts about the exact number of
professors who participated in the Assembly differ. Prof Gerhard Sempel asserts
1 Cited in Ralph M. Carson, “Disadvantages of a Federal Constitutional Convention”, Michigan Law

Review, Vol. 66, No. 5 (Mar., 1968), pp. 921-930, at p.925.
2 Alexis de Tocqueville, (1835), Democracy in America, Vol.1, Saunders and Otley, London [digitalised
version], p.130.
3 See generally, David Bernstein, “The Constitutional Convention: Facts and Figures”, in The History
Teacher, Vol. 21, No. 1 (Nov., 1987), pp. 11-19.

4 Carson, op. cit. p. 925.
5 Bernstein, op. cit., p.14.
6 Martin S. Sheffer, “Presidential Power and Limited Government,” in Presidential Studies Quarterly, Vol.
21, No. 3, Ordered Liberty (Summer, 1991), pp.471-488, at p.474.

7 Ibid.
8 See, Vile, op. cit., p.150. According to Vile, Wythe left the Convention after just one week to look after
his sick wife (see, Vile, ibid., p.150.

9 Joshua Muravchik, (1992), Exporting Democracy: Fulfiling America’s Destiny, The AEI Press, Washington
Dc, at p.87.
68
that 569 delegates were academics.1 Again, whereas Roessler and Miklos assert
that the assembly included 100 professors2, Lindenfeld refutes such account and
others for being wrong in that, as he asserts, only 49 professors attended.3 In any
case, 49 professors in the Assembly in that year (1848) is still remarkable by any
standard. It is also averred that over 600 delegates were university degree holders,
491 of whom were lawyers.4 Furthermore, the Assembly also comprised 20
journalists and 56 businessmen.5 While there are varied accounts about the number
of professors, there is no dispute that the delegates were “well-educated and
articulate” middle-class men.6 Nevertheless, its description as “the assembly of
professors” by modern history is far from being a praiseworthy eulogy. It is rather
a derisory statement that indicates how it was too divorced from the ordinary
people. It was one the reasons it failed.7 According to Sempel, “The people in these
countries [i.e. Austria and Prussia], and in the rest of Germany, were simply
propagandized to believe that they did not have any political talent. Decisions had
to be made for them.”8
The German traditions of entrusting constitution-making to the educated elites

also dictated the composition of the 1948-9 Parliamentary Council which was held
in Bonn. In the words of Markovits, “The authors of the Grundgesetz [Basic Law]
were no men of the people.”9 They were almost exclusively drawn from the elite
class of the population. Two-thirds of the delegates held university degrees.10 They
included distinguished politicians and professors some of whom had served
during the Weimar Republic.11 Civil servants constituted over 60% and lawyers
1 Gerhard Sempel, “1848: Revolution and Reaction,”

http://mars.wnec.edu/~grempel/courses/germany/lectures/081848.html accessed on 2nd November
2016.
2 Shirley E. Roessler and Reny Miklos, (2003), Europe: 1715-1919: From Enlightenment to World War,
Rowman & Littlefield Publishers Inc., Maryland, p.146.

3 David F. Lindenfeld, (1997), The Practical Imagination: The German Sciences of State in the Nineteenth
Century, the University of Chicago Press, Chicago and London, at p.157.

4 Ibid.
5 Ibid.
6 Jackson J. Spielvogel, (2012), Western Civilization Since 1300, 9th edn, Wadsworth Cengage Learning,
New York, at p.644.

7 Sempel, op. cit.
8 Ibid.
9 Inga Markovits, “Constitution Making After National Catastrophes: Germany in 1949 and 1990”, in

10 Ibid.
11 Eric Langenbacher, “The Political and Constitutional Order,” in Sarah Colvin and Mark Taplin (eds.),
(2015), The Routledge Handbook of German Politics and Culture, Routledge, New York, pp.87-104, at p.88.
69
formed 41% of all delegates.1 The elitist nature of the delegates influenced the
character of debate in the Council in which, as Markovits notes, “historical
references and literary quotations were bantered back and forth.”2 It is also
noteworthy that a committee of experts (the Herrenchiemsee Constitutional
Convent) that sat in Herrenchiemsee Island in August 1948 prepared the draft
constitution that was debated by the Parliamentary Council in Bonn.3 The prime
ministers of western German states appointed 11 experts that constituted the
Committee.4 The experts were truly distinguished individuals: “All had at least
one doctorate to their names and all were either professors, high court judges, or
highly placed administrators in their respective Land's justice administration.”5 In
short, constitution-making in Germany has almost been an exclusive business for
technocrats and elites.
In Uganda, the qualifications of delegates to the 1994-5 Constituent Assembly were

equated to the eligibility ordinarily ascribed to membership in Parliament.
According to the law, a person could be elected as a delegate if he or she was a
citizen; an adult (attained 18 years of age); and had paid all requisite taxes. 6 The
law also disqualified persons with unsound mind; those detained as criminal
lunatic, declared bankrupt or insolvent, sentenced to death or serving long
imprisonment sentences, and those recently convicted of electoral offences, or
offences related to moral turpitude or violence.7 The law said nothing about
education or professional qualification of the delegates. It was open to any citizen
who met the conditions set by law. Pieces of legislation in Kenya and Tanzania did
not stipulate qualifications of delegates to the respective constituent assemblies.
The fact they declared all MPs to be members of the assemblies rendered any
stipulation of qualifications irrelevant. As it has been noted in the previous
lectures, Justice Ringera held that “in constitution-making, it is necessary for one
to have expertise in such matters as public affairs and administration, institutional
design, constitutional law and practice, comparative governmental systems, and
1 Markovits, op. cit., p.1309.

2 Ibid.
3 Agness Strauβ, “Testing the “Veil of Ignorance” Hypothesis in Constitutional Choice: Evidence from
the German Grundgesetz,” in Louis M. Imbeu and Steve Jacob (eds.), (2015), Behind a Veil of Ignorance?
Power and Uncertainty in Constitutional Design, Springer, New York and London, pp.135-154, at p.142.
4 Fafard and Reid, op. cit., p. 19 and Markovits, op. cit., p.1310.
5 Markovits, op. cit., p.1310.
6 Section 5 of the Constituent Assembly Statute, 1993.
7 Section 6, Ibid.
70
legal drafting.”1 Of course, it is not easy to have a sizable number of people with
such qualifications. Levy, who highlights such difficulty, concludes, “Normally we
resolve this tension by delegating law-making to elected representatives, who we
expect will be suitably informed.”2 On his part, Condorcet thought that such
representatives should be “sufficiently enlightened.”3
On the basis of the foregoing, it may be asserted that some general understanding
or experience in public affairs by an individual delegate is important. However,
this does not mean that the membership should be confined to politicians or
lawyers. Murray, for instance, criticised the South African Constitutional
Assembly (1994-6) whose team of advisors was wholly composed of lawyers.4 As
noted elsewhere, although professions like political science, law, and public
administration, are crucial, other avocations like sociology, economics, public
finance, and others, are also significant. Election results, usually controlled by
indeterminable public opinion, are often times difficult to gauge. They may
produce anything. It may turn out that the elected delegates are people without
the most recommendable qualifications. For this reason a minimal education
qualification and experience could be stated by law. The reason for suggesting “the
minimal qualifications” is that legal stipulation that requires high education level
like in Germany may not be a good idea in the third world country where the levels
of literacy are comparatively low. It is also undemocratic. All citizens deserve to
have a say in the destiny and affairs of their country. Their low education does not
make them any less or second class citizens. Equal opportunities to all citizens is
the cornerstone of democracy. Furthermore, to confine constitution-making to the
highly educated and affluent class of the population is to give such class a licence
to protect its own interests to the detriment of the downtrodden. There is no
assurance that such class of people would always protect and promote the
impartial public interests or create a neutral constitutional order.
1 Njoya and others v. Attorney-General and others [2004] 1 EA 194.

3 Cited in Jon Elster, "The Optimal Design of a Constituent Assembly" on

October 2016.
4 Christina Murray, “Negotiating South Africa’s New Constitution,” in Clement Macintyre and John
Williams (eds.), Peace, Order and Good Government: State Constitutional and Parliamentary Reform,
Wakefield Press, Kent Town, pp.68-83, at pp.76-77.
71
Constitution-making is a political process that needs to be more people-centred

than elitist one. It is an all-inclusive and participatory democratic process. In the
words of the former Brazilian president elect Tancredo Neves, who unfortunately
died before taking office, “The Constitution is not a subject restricted to jurists, to
the wise, or to politicians. It cannot be the act of some elites. It is the responsibility
of all the people.”1 Furthermore, in the words of Landemore, “popular sovereignty
need not be represented only by able-bodied, middle-aged men in suits and ties.”2
It has to reflect all segments of the population of the particular state. Moreover,
Levy opines that people must be presumed to make suitable choices. 3 Of course,
this presumption does not always augur well with the reality for not all people can
competently undertake the task. For this reason, stipulation of minimum
requirement is important and appointments could be used as a supplementary
mechanism to remedy the situation.
Number of Delegates
The size of a constituent assembly deserves at least a cursory examination. The
number of delegates tends to vary from one constituent assembly to another. Few
examples as shown in the table below illustrate practical diversity among various
states.
Assembly Size
The 1787 American Constitutional Convention 55
The 1789-91 French National Constituent Assembly4 1219
The 1848 French Constituent Assembly 800
1 Cited in Maria Helena Versiani, “A Republic in constituent assembly process (1985-1988)”, on

http://www.scielo.br/scielo.php?pid=S0102-01882010000200013&script=sci_arttext&tlng=en, accessed
on 18th September 2016.
2 Hélène Landemore, “We, All of the People: Five lessons from Iceland’s failed experiment in
creating a crowdsourced constitution”, on

http://www.slate.com/articles/technology/future_tense/2014/07/five_lessons_from_iceland_s_failed
_crowdsourced_constitution_experiment.html, accessed on 9th July 2016.
4 Alison Patrick, “The Second Estate in the Constituent Assembly, 1789-1791”in Journal of Modern
History, Vol. 62 (June 1990), pp.223-252 at p. 227.
72
The 1848 Prussian Constituent Assembly1 398
The 1848 Swiss Drafting Committee 23
The 1946-9 Indian Constituent Assembly 389
The 1947-56 Pakistani Constituent Assembly 78
The 1977 Nigerian Constituent Assembly 230
The 1984 Nicaraguan Constituent Assembly 90
The 1989-90 Namibian Constituent Assembly 72
The 1991 Ghanaian National Consultative Assembly 258
The 1994-5 Ugandan Constituent Assembly 298
The 2003-4 Kenyan Constitutional Conference 629
The 2014 Tanzanian Constituent Assembly 640
The diverse nature of state practice defies any attempt to develop a coherent theory
regarding the optimal size of constituent assemblies. Nevertheless, it may be stated
that the size of a particular assembly partly depends on the number of groups or
interests that need to be represented. Thus, the larger and more populous the
country means more groups or interests to be represented and therefore more
delegates to an assembly, and vice versa. For instance, only 23 delegates formed the
1848 Swiss Drafting Committee.2 Certainly, Switzerland is a small country and its
population at the time must have been much lower. However, things do not
always work in this pattern. The USA, a large country, had only 55 delegates in its
1787 Convention. In contrast, the French National Constituent Assembly (1789-91),
held only two years after the American Convention, had 1219 delegates. Of course,
the political situation in France was more volatile and agitations for more
representation were higher than in the USA.
The second factor, according to Elster, is the nature of population.3 A country with
more homogeneous population would probably need only a few delegates.
1 Donald J. Mattheisen, “Association Voters and Parliaments in the German Revolution of 1848: An
Analysis of the Prussian Constituent Assembly,” in Central European History, Vol. 5, No. 1 (Mar., 1972),
pp. 3-22, at p.10.
2 Fafard and Reid, op. cit., p. 19.
73
Conversely, according to this theory, more population heterogeneity means many

social identities that exist have to be represented. India is very heterogeneous
country in terms of religious and ethnic identities; its constituent assembly was
thus relatively bigger. However, the US which is also heterogeneous, its 1787
Constitutional Convention had only 55 delegates. Of course, it is known that
blacks, Indians and other social identities were excluded; the Convention consisted
of white males only. Another example of representation of many existing social
pluralities, as noted earlier, is the 2008 Nepalese Constituent Assembly.
It may be stated that geographical, social and demographic dimensions may be

relevant but they are certainly not the sole determinant factors. Political, social,
and other conditions obtaining in a particular country at a time also play part.
Variations in such conditions make it difficult or almost impossible for one to
propose any generalised optimal number of delegates. Owing to this difficulty, it
is proposed to examine the two extremes only ─ the situation where the number
of delegates is either too small or too big. Likewise, it is difficult to state with any
degree of precision as to which number should be regarded as too small or big. It
all depends on the size and nature of population of the state in question. Thus,
taken as an example, on account of population size and existing social pluralities
and various interests in Kenya, Tanzania and Uganda, it is opined that an assembly
with less than 150 and with over 400 delegates would be too small and big
respectively. Both undersized and oversized assemblies portend dangers that
ought to be underscored.
Three implicit dangers exist if the number of delegates is too small. First, the
likelihood of a few individuals to be swayed by strong forces is high.1 The danger
of entrusting important constitutional powers in the hands of a few individuals
was highlighted in the 1787 American Constitutional Convention. One of the
issues that featured in its debates was the impeachment powers (that is the power
to try and remove the President from office on account of serious misconduct,
breach of constitution or commission of serious crimes). By their nature such
powers are judicial. But one of the delegates, Mr. Gouvernuer Morris, warned that

October 2016.

October 2016.
74
“no other tribunal than the Senate could be trusted.”1 According to him, “[judges
of] [t]he supreme Court were too few in number and might be warped or
corrupted.”2 His opinion held sway. Consequently, the US Constitution vested the
impeachment power in one of the houses of the legislature (i.e. Senate) but not the
judiciary for the fear that few judges would be overcome by the strong president.3
It means that the higher the number of members the more it becomes difficult to
manipulate them and vice versa. Whether in pursuance of this philosophy or out
of sheer imitation, Kenya,4 Tanzania5 and Uganda6 have all entrusted the power of
impeachment in their legislative, instead of the judicial, branches of government,
although such power is inherently judicial. Thus, genuine fears exist that if
delegates to a constituent assembly are very few then it is possible for them to be
bribed, threatened or otherwise easily manipulated by strong forces that are
opposed to constitutional reforms.
Second, a small assembly may not take key decisions. As stated by Condorcet, "If
a body is not numerous enough, it is necessarily weak, because, in the occasions
where courage is needed, everyone will fear to be personally compromised.”7 So,
apart from the possibility of manipulation, few delegates might also be
unprepared psychologically to make certain beneficial decisions. This is so
especially when such decisions are likely to displease the government or the
bullish majority group. The sense of insecurity might be borne out of the possibility
of harassment by government, the majority or other groups. The 2011-4 Tanzanian
constitutional review process indicated that it was a process in which some
participants stand to suffer personally. The Chairman of the Constitutional Review
Commission, Justice Joseph Sinde Warioba, was personally abused by those who
disliked proposals made by the Commission he chaired. Similarly, the Chairman
of the 2014 Constituent Assembly, Mr Samwel Sitta, was a constant subject of
1 Fell, op. cit., p.372.

2 Ibid.
3 Article 1, section 3 of the US Constitution.
4 Article 145 of the Constitution of Kenya, 2010.
5 Article 46A of the Constitution of the United Republic of Tanzania, 1977.
6 Article 107 of the Constitution of the Republic of Uganda, 1995.
7 Condorcet, Marquis de (1788), “Essai sur l’appliction de l’analyse à la probabilité des decision rendues
à la pluralité des voix” in Condorcet 1986, cited in Jon Elster, "The Optimal Design of a Constituent
Assembly" on
October 2016.
75
attack by the media. For this reason, it is advisable for the number of delegates to
be increased.
Third, a small assembly in a populous and heterogeneous state means many

groups and interests are excluded. Lack of diversity and inclusiveness denotes that
a constitution that is prepared by such assembly may not be acceptable to the
excluded groups. Legitimacy of a constitution hugely depends on an inclusive and
broad participatory process. Thus, exclusion of certain groups in order to keep an
assembly small could result into a serious trouble.
The other extreme, the oversized assembly, also presents peculiar challenges. One
of the American constitution founders, James Madison, once stated, “the number
ought at most to be kept within a certain limit, in order to avoid the confusion and
intemperance of a multitude. In all very numerous assemblies, of whatever
character composed, passion never fails to wrest the sceptre from reason.”1 This
observation was based on the historical experience. An assembly that is too big is
chaotic and its management would be very difficult. The Constituent Assemblies
of Kenya (2003-4) and Tanzania (2014), each of which had over 600 delegates, were
really anarchic.2 Probably, the Tanzania Assembly was the most chaotic assembly
ever. It was extremely noisy. Its delegates spent much of the time trading insults
and jeering at each other. This belittled the esteem and importance of such unique
constitutional institution. Another challenge related to big assemblies is that it is
expensive to organise them. Costs may be aggravated by the fact that debates in
oversized assemblies would normally take more time.
Moreover, another serious problem is pointed out by Condorcet: “The numerous

body can abuse [its] strength; it can derive from it a form of independence.” 3 The
psychology of the multitude is very well known. It is akin to that of a group of

October 2016. See also, Pennsylvania State University, (2001), “Federalist No. 55”, in The Federalist
Papers, p.248.
2 See, Jill Cottrell & Yash Ghai, “Constitution Making and Democratization in Kenya (2000–2005)”,

3 Condorcet, Marquis de (1788), “Essai sur l’appliction de l’analyse à la probabilité des decision rendues
à la pluralité des voix” in Condorcet 1986, cited in Jon Elster, "The Optimal Design of a Constituent
Assembly" on
October 2016.
76
people that develops quickly into “a lawless and sanguinary mob”1, to use Burke’s
phrase; its members could burn houses, cars and kill people on the spot; its
members could burn houses, cars and kill people on the spot. A good disposition
and wisdom of an individual tends to fade away the moment he joins a crowd. As
Professor Bryce says, “The larger the crowd, the less is it guided by reason and the
more by its emotions.”2 The rule of law is usually forgotten promptly when people
congregate in large numbers. This is the typical problem of an oversized assembly.
The delegates would feel that they are strong, independent and they could do
everything without any fear. It ordinarily becomes difficult for them to appreciate
the limits of their powers. The perfect example is the 2014 Tanzanian Constituent
Assembly. When over 600 members arrived in Dodoma, where they met, and
found themselves in such a big crowd, their natural humility and zeal to work for
the nation vanished abruptly. They immediately claimed hefty allowances and
more seriously they asserted, in an arrogant fashion, that they had power to do
everything including rejecting people’s opinions.
Powers and Functions

 An Overview
What can a constituent assembly do? What cannot it do? The answers to both
questions resolve around the issue of power: the legal or legitimate ability for an
institution to make certain decisions.3 Specific powers and functions vested in a
constituent assembly tend to differ from one country to another. The variations
also depend on the nature of a particular assembly. Naturally, revolutionary
assemblies have wider powers than those that are established by the law. Similarly,
the broad-powered constitutional assemblies have exercised broad functions than
the limited assemblies. In trying to explain the powers of constituent assemblies
two contrasting theories have always been propounded. The first is called the
doctrine of constituent assembly sovereignty and the other is the doctrine of agent
with limited powers. Let us briefly examine each of the two doctrines.
 The Doctrine of Constituent Assembly Sovereignty

The doctrine of sovereignty of a constituent assembly holds that a constituent
assembly is a sovereign or omnipotent body. It means that its powers are
1 F. P. Lock, (2006), Edmund Burke: Volume II, Clarendon Press, London, p. 256.
2 James Bryce, (1921), Modern Democracies, Vol. 1, The Macmillan Company, New York, p.147.
3 See for instance, W. Phillips Shively, (2003), Power and Choice: An Introduction to Political Science, 8th
edn, Mc-Graw Hill, New York, at p.5.
77
unlimited. Like the British Parliament, it can do anything it pleases. It may abolish
the government in power, replace it with another one in whatever form it chooses,
or even opt to have none. As it is usually suggested, it may abolish elections and
assign an exclusive right to rule to one family or certain social or political group.
Probably one of the most blatant claims of sovereignty was the one made by Mr.
Peters in the 1847 Illinois Convention who claimed that he would not recognise
any restriction on the powers of that convention.1 As he further said: “We are the
sovereignty of the State. We are what the people of the State would be, if they were
congregated here in one mass-meeting. We are what Louis XIV. said he was,' We
are the State.' We can trample the Constitution under our feet as waste paper, and
no one can call us to account save the people.”2 Jameson also cites one Hon. George
M. Dallas who described a convention as “a machinery for peaceful revolution”
and “the civilized substitute for intestine war.”3 According to him, a constitutional
convention could proscribe whatever that was injurious; restore slavery; make the
penal code as bloody as that of Draco; withdraw the charters of cities; abolish the
judiciary and replace it with arbitration and umpirage; prohibit particular
professions and trades; suspend the writ of Habeas Corpus; and take away the trial
by jury.4 The effect of the above is that powers of a constituent assembly are
boundless. It is a sovereign institution whose members enjoy complete freedom to
do whatever they deem right.
This theory seemingly proceeds from the assumption that such assemblies are
vested with all people’s sovereignty and thus they can fully exercise constituent
powers of the people. In other words, it “regards the convention as a purely
representative body, a body not of delegated powers, but one which, being in
substance the people themselves, has all the people's sovereign powers.”5 Hoar
cites one Benjamin F. Butler who made an assertion along these lines in the 1853
Massachusetts Convention:
We are told that we assume the power, and that we are merely the agents
and attorneys, of the people. Sir, we are the delegates of the people,
chosen to act in their stead. We have the same power and the same right,
1 Cited in Jameson, op. cit., p.262.

2 Cited in ibid.
3 Cited in ibid.
4 Cited in ibid.
5 The Harvard Law Review Association, “The powers of Constitutional Conventions,” in Harvard Law
78
within the scope of the business assigned to us, that they would have,
were they all convened in this hall.1
In America, the claim about omnipotence of constituent assemblies had support of

some judicial authorities in the 19th century. For instance, in 1849 the Supreme
Court of Texas partly held in McMullen v. Hodge2 thus, “It would be in the power
of such convention to take away or destroy individual rights, but such an intention
would never be presumed.”3 Likewise, the Supreme Court of Mississippi stated in
1898:
We have spoken of the constitutional convention as a sovereign body, and

that characterization perfectly defines the correct view, in our opinion, of
the real nature of that august assembly. It is the highest legislative body
known to freemen in a representative government. It is supreme in its
sphere. It wields the powers of sovereignty, specially delegated to it for
the purpose and occasion by the whole electoral body, for the good of the
whole commonwealth.4
Furthermore, in 1908, the Supreme Court of Michigan also held, “The convention
is an independent and sovereign body.”5 The Harvard Law Review Association6
cites other American cases which supported the doctrine: Loomis v. Jackson7; Sproule
v. Fredericks8; and Miller v. Johnson.9 Overall, all these judicial pronouncements are
based on the theory of sovereignty of constituent assemblies. It would be pertinent
to remark here that the same claim was made by some members of the 2014
Constituent Assembly of Tanzania. They claimed to have unbridled power to
change the whole draft constitution submitted to the Assembly by the
Constitutional Review Commission or even rejecting whatever people had
proposed. It decided to function outside the confines of law. For instance, acting
outside its legal mandate, it resorted to summon certain influential social groups
and individuals including artists and musicians for the purpose of collecting their

2 (1849), 5 Tex. 34, 73.
4 Sproule v. Fredericks (1892), 69 Miss. 898, 904. Cited in Hoar, ibid., p.133.
5 Carton v. Secretary of State (1908), 151 Mich. 337, pp.340-341. Cited in Hoar, ibid., p.133.
6 The Harvard Law Review Association, “The powers of Constitutional Conventions,” in Harvard Law
Review, Vol. 29, No. 5 (Mar., 1916), pp. 528-533, at p.530. See also Michigan Law Review Association,
“Constitutional Law: Powers of Constitutional Convention,” in Michigan Law Review, Vol. 6, No. 7 (May,
1908), pp. 588-589, at p.589.
7 6 W. Va. 6I3, 708.
8 69 Miss. 898.
9 92 Ky. 589, 18 S. W. 522.
79
public opinion. Politically, the move was intended to win public support on its part
as a preparation for its mission to change the draft constitution. In short, it claimed
to have unlimited powers although its members had not been elected by the
people.
However, this theory has been subjected to the sternest criticisms. Braxton, for
example, has described it as “mistaken and dangerous.”1 According to him, there
was tendency to confuse ordinary constituent assemblies with the revolutionary
assemblies.2 In this regard, he stated the differences between the two. His eloquent
exposition deserves to be reproduced in extenso:
The Constitutional Convention is normal, the Revolutionary Convention

is abnormal; the one is the child of law and order, the other, of violence
and anarchy; the former is the companion of Peace, the latter the
concomitant of War; the one is the fruit of political health, the other of
political disease; the one evidences the growth and development of
government, the other its overthrow; the former is the legitimate off-
spring of existing government, the latter a dispossessing intruder. The
Constitutional Convention co-exists with the former government, which
continues to perform its functions, by virtue of the old Constitution and
laws, until the new Constitution is adopted; the Revolutionary
Convention is the Government itself, the co-existence with which of any
other government is impossible. The Constitutional Convention repairs
and improves the Government, the Revolutionary Convention rebuilds
it de novo after it has been pulled down and destroyed. One body exists
as a lawful institution, the other exists because there is no law; the one
necessarily recognizes the governmental system which gave it birth and
by which it is bound, the other recognizes no institution and is a law unto
itself. One is legitimate, the other illegitimate; one exists de jure, the other
de facto. The one depends for its support upon the laws and existing
institutions, the other upon its physical power to maintain itself.3
The gist of this long and eloquent exposition on the differences between an
ordinary constituent assembly and the revolutionary one is that it is a
misconception to think that an assembly established by law wields the unlimited
powers akin to the revolutionary assembly which exists by virtue of brute force. It
is unconceivable to have any organ with unlimited powers in a constitutional state.
As the Kenyan High Court held: “the principle of the supremacy of the
1 A. Caperton Braxton, “Powers of Conventions,” op. cit., p.79.

2 Ibid.
3 Ibid., p.80.
80
Constitution precludes the notion of unlimited powers on the part of any

organ…”1
The second criticism is that the doctrine wrongly presumes that by creating a
constituent assembly people transfer their powers wholly to such an institution.
But, as argued by James Wilson, “sovereignty is and remains in the people."2
Furthermore, after reviewing authorities, Jameson points out that sovereignty is
indivisible, indefeasible and inalienable.3 To use his own language, “Sovereignty
is inalienable; that is, "society never can delegate or pledge away sovereignty."4
The dangers of transferring all powers to a constituent assembly were highlighted
by an American judicial authority case of Wood's Appeal5:
If, by a mere determination of the people to call a convention, whether it

be by a vote or otherwise, the entire sovereignty of the people passes ipso
facto into a body of deputies or attorneys, so that these deputies can
without ratification, alter a government and abolish its bill of rights at
pleasure, and impose at will a new government upon the people without
restraint upon the governing power, no true liberty remains. Then the
servants sit above their masters by the merest imputation, and a people's
welfare must always rest upon the transient circumstances of the hour,
which produce the convention and the accidental character of the
majority which controls it.6
This judicial authority underscores the fallacy and dangers inherent in the
doctrine. In the first place, liberty cannot be protected if there is an institution that
holds unlimited powers to do whatever it wishes. In the second place, to assume
that a constituent assembly is invested with unlimited powers is to place it above
the people. The suggestion is unconstitutional as it conflicts with the doctrine of
popular sovereignty and constituent power. The ultimate power in a political
society resides in the people generally. It does not reside in any individual, family
or certain social group. Neither does it belong to any institution like a constituent
assembly.
1
Njoya and others v Attorney-General and others [2004] 1 EA 194 at p.220.
2 Cited in Jameson, op. cit., p.20.
3 Ibid.
4 Ibid.
5 (1874), 75 Pa. 59, 70.
6 Cited in Hoar, op. cit., pp.135-6.
81
 People’s Agent with Limited Powers

The second theory describes a constituent assembly as an agent that exercises
powers delegated to it by the people through the law. Before proceeding
Furthermore, it is important to explore the concept of “agency.” It is applied to
constitutional law but its original domicile is the law of contract. According to Bigg
and Thompson, “An agent is a person having express or implied authority to act
on behalf of another person, who is called the principal,…”1 As they say, the
relationship between the principal and agent is analogous, though not identical, to
that of master and servant.2 The essence of their explanation is that the agent or
servant is always subordinate to the principal or master. In principle, an agent or
servant cannot reverse this relationship and arrogate upon himself the powers of
the principal or master. Applying this reasoning, a constituent assembly is an agent
or servant of the principal or master (i.e. the people). As Jameson points out, “It is
charged with a definite, and not a discretionary and indeterminate, function.”3 As
he further contends, it is not sovereign but subaltern.4 The term “subaltern” simply
means an inferior or subordinate authority.5 In the view of Braxton, “a
Constitutional Convention is not the People, with sovereign and unlimited
powers, but a mere Committee of the People, with only such limited powers as the
People may expressly bestow upon them, the granting of which powers will be
strictly construed against the Convention.”6
It follows that a constituent assembly that claims unfettered powers ceases to be a

legal institution and it acquires a revolutionary character.7 In other words, as
Jameson contends, “It leaves the domain of law, which is one of specified and
restricted powers, and enters upon that of arbitrary discretion, within which law
is silent, and where he is master who wields the greater force.”8 This view has also
received judicial recognition in America. In the case of McCready v. Hunt9 it was
held thus: “Upon the common-place principle that the authority of the agent is
1 W.W. Bigg and J.H. Thompson, (1966), Ranking, Spicer & Pegler’s Mercantile Law, 12th edn, HFL
(Publishers) Ltd, London, at p.88.
2 Ibid.
3 Jameson, op. cit., p.10.
4 Ibid.
5 Brian A. Garner, (ed.), (1999), Black’s Law Dictionary, 9th edn, West Group, St. Paul Minnesota.
6 Braxton, “Powers of Conventions,” op. cit., p.96.
7 Jameson, op. cit., p.11.
8 Ibid.
9 (1834), 2 Hill Law (S. C.) 1, 242.
82
limited by the powers conferred on him by the principal, the powers of the
delegates were limited to the objects designated by the act under which the
convention was called.”1 In the Opinion of Justices2 about the powers of a
constituent assembly, it was partly held, “They [the delegates] are not endowed
with the entire sovereignty of the state. Their agency, like every branch of the
public service, is marked on all sides by fixed bounds.”3 Moreover, the issue as to
whether the decisions of a constituent assembly could be challenged in a court of
law has also been considered in the USA. In Foley v. Democratic Parish Committee,4
for instance, the Louisiana Supreme Court declared invalid certain “clauses in a
new constitution, enacted by a constitutional convention contrary to certain
restrictions imposed by the enabling act and popular vote calling the convention.”5
There are, of course, many other authorities on the point.6 These authorities clearly
indicate that actions of constituent assemblies could be challenged in courts of law.
Amenability to the jurisdiction of courts is another evidence that refutes the idea
that a constituent assembly is a sovereign body whose deeds and misdeeds are
sacrosanct. These authorities are American but they coincide very well with, and
relevant to, any constitutional and political system that recognises people as the
ultimate reservoir of public power. As Braxton puts forth, an assembly must “take
the sense of the People upon its work before finally adopting it.”7 It must always
serve in the best interests of the people.
On account of the above, the following may be said of an ordinary constituent

assembly. Firstly, it is an institution that works on behalf of the people. Its
relationship with the people is that of principal and agent; the people being the
principal while the assembly is a mere agent. Being an agent, a constituent
assembly is an inferior institution whose powers cannot be elevated to the level of

2 (1889), 76 N. H. 612, 617.
3 Cited in Hoar, op. cit., pp.137-8. Cited in The Law Review Association, “The powers of Constitutional
Conventions,” in Harvard Law Review, Vol. 29, No. 5 (Mar., 1916), pp. 528-533, at p.528.
4 70 So. 104 (La.).
5 The Harvard Law Review Association, “The Powers of Constitutional Conventions,” in Harvard Law

6 Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; State v. Tufly, 19 Nev. 391, 12 Pac. 835; Bott v. Wurts,
63 N. J. L. 289, 43 Atl. 744, 881; Koehler v. Hill, 60 1a. 543, 14 N. W. 738, 15 N. W. 609; Durfee v. Harper, 22
Mont. 354, 56 Pac. 582; Collier v. Frierson, 24 Ala. 100, 111; West v. State, 50 Fla. 154, 39 50. 412 [see The
Harvard Law Review Association, “The powers of Constitutional Conventions,” in Harvard Law Review,
Vol. 29, No. 5 (Mar., 1916), pp. 528-533, at p.532].
7 Braxton, (1901), op. cit., p.106.
83
the sovereign powers of the people; it is only a servant of the masters (i.e. the
people). Secondly, in establishing a constituent assembly, people do not surrender
all their sovereign power to it. Ordinarily, they delegate certain functions and
powers but the ultimate power remains with them. In other words, they do not
donate the “entire bundle,” but only a small portion, of their powers, so to speak.
The common practice of submitting a draft constitution to popular referendums
means the ultimate power lies elsewhere than a constituent assembly. Thirdly, the
powers and functions of the legally created constituent assembly are as provided
by the law. It has no power to operate outside the law or assume the extraordinary
powers of a revolutionary assembly. Fourthly, the illegal, excessive and improper
actions of a constituent assembly could be challenged in a court of law. Fifthly, an
assembly must always remain alive to the wishes, and serve in the best interests,
of the people.
 Common Powers and Functions

It would appear that what an assembly can do entirely depends on the specific
mandate determined by law or an established practice in a particular political
society. The practice is varied. As noted earlier, some assemblies like those of
France (1789-91), Prussia (1848-9), India (1946-9), and Pakistan (1947-56), have also
functioned as legislatures with power to make ordinary laws. The 1946 French
Constituent Assembly had, among other things, the power to form a provisional
government.1 Again, the Namibian Constituent Assembly (1989-90) acted as the
first National Assembly and proceeded to elect the first President of the
independent Namibia on 16th February 1990.2 However, the discussion under the
present heading is limited to constitution-making. As to this undertaking,
constituent assemblies have made rules, appointed their officers, drafted, debated
and approved constitutions. But the practice has not been immutable. Recently,
delegates to constituent assemblies have crossed the walls of the debating halls to
collect public opinion and raise public awareness as well. Let us discuss some of
these powers and functions.
1See, David White and Daniel P. Murphy, (2007), The Everything: World War II Book, 2nd edn, Adams
Media, Massachusetts, at p. 152.
2 See, Victor L. Tonchi, et al., (2012), Historical Dictionary of Namibia, 2nd edn, The Scarecrow Press, Inc.,
Toronto, p.402.
84
 Rule-making
Rule-making is one of the preliminary activities that have been performed by
constituent assemblies. An assembly cannot operate in an orderly manner unless
there are standing orders or rules in place. The practice of making rules began with
the American state conventions and was followed by the 1787 Federal Convention.
Immediately after its delegates met the Federal Convention appointed lawyers to
constitute “the Rules Committee” for the purpose of formulating its standing
orders.1 This has grown into a world-wide practice. The recent constituent
assemblies in Kenya (2003-4) and Tanzania (2014) exercised the rule-making power
before they took on any other assignment. It may be suggested that since the
assembly is established by legislation enacted by the legislature its rules could also
be prepared in the same manner in order to save time. In principle, however, the
legislature has no power to make such rules. It is the power that solely belongs to
an assembly. In the American case, Wells v. Bain,2 it was held thus: “It is a
deliberative body, having all the necessary authority to make rules for its own
procedure, and to decide upon all questions falling within the scope of its
authority.” Furthermore, the legislature has no power to enact rules for an
assembly because it has no power to exercise any control over it. In this regard,
Braxton states:
“If the powers may be limited at all, it must be by the authority from
whence the powers sprung. It seems clear, therefore, that if any Body can
limit the powers of the Convention, that Body must be the People
themselves, from whom alone the powers of the Convention emanated.”3
This principle is based on the rationale that the legislature or any other body is to
be denied any power to control an assembly. The experience of the 2003-4 Kenyan
National Constitutional Conference (NCC) offers a good example of interference.
All branches of the government sought to interfere with the NCC. One, MPs who
formed part of the NCC did everything to make sure that the draft constitution did
not include provisions that limited their tenure or gave people the power to recall
them.4 Two, the judiciary also attempted to prevent the people’s efforts to reform
it. As Cottrell and Ghai reveal,
1 Vile, op. cit., p.149.

2 (1872), 75 Pa. 39, 55, cited in Hoar, op. cit., p. 170.
3Braxton (1901), p.106.
4 Cottrell and Ghai, op. cit., p.18.
85
Once the judges realised that the Draft would lead to serious investigation of judicial
defalcations for the first time, they were only too willing to uphold efforts to use the
judicial process to delay the review. And in August 2002, a group of judges, backed,
it was reliably learned, by the chief justice himself and with the connivance of the
president’s office and some CKRC commissioners, obtained an interim injunction to
the effect that the CKRC must not discuss the judiciary.1
It may be stated, this particular injunction was patently unconstitutional and

illegal. In the exercise of their constituent power people have the right to reform
the judiciary or any other branch of government. Put differently, they have power
to discuss, criticise and reform not only the judiciary but also any other branch of
government. They are even constitutionally entitled to demand the dismissal all
corrupt judges and magistrates. There is no limitation. People cannot be prevented
from discussing the judiciary by injunctions or threats of being jailed for contempt
of court.
Three, the executive branch meddled with the NCC immensely. The NCC was
adjourned sometime in 2003 in order to allow MPs to attend the National
Assembly’s Budget session.2 In order to delay, sabotage and frustrate the process
the government announced that the NCC would resume on 12th January 2004.3 The
Chairman of NCC countered that only the NCC could fix such date and declared
that it would resume on 17th November 2003.4 On this latter date the gates to the
venues (the Bomas of Kenya) were closed and the armed police surrounded the
area to make sure no one would enter the place.5 A case was filed in the High Court
requesting it to make a declaration that the government had no power to interfere
with the Conference.6 However, according to Cottrell and Ghai, the judge
deliberately kept on adjourning the matter until the date desired by the
government arrived.7
Thus, it is absolutely necessary to protect the Assembly from governmental

incursions. The major aim of constitution-making is to reform the government.
This aim cannot be realised if the government is allowed to meddle with an
1 Ibid.
2 Ibid., pp.14-15.
3 Ibid.
4 Ibid.
5 Ibid.
6 Ibid., p.15.
7 Ibid.
86
assembly. As observed, the birth of an assembly as a forum for constitution-

making was aimed at denying parliament constituent power in order to protect the
people and ensure that government remains accountable to the people.
 Election and Appointment of Officers

Constituent assemblies have also appointed their officers and leaders. The more
entrenched practice is the election of the leadership by delegates. The rationale for
this practice, as Hoar states, is to protect an assembly from interference by other
departments of government.1 If other bodies are to exercise the powers to choose
leaders of an assembly the danger exists that it will be controlled. In this
connection, the Judiciary Committee of the 1894 New York Convention stated: “It
is of the greatest importance that a body chosen by the people of this state to revise
the organic law of the state, should be as free from interference from the several
departments of government, as the legislative, executive and judiciary are, from
interference by each other.”2 Perhaps, it is not out of place to cite a few examples.
The delegates to the 1787 American Constitutional Convention unanimously
elected George Washington as their Chainman.3 Members of the 1994-6 South
African Constitutional Assembly elected Cyril Ramaphosa of the ANC as its
chairperson and Leon Wessels of the National Party as deputy chairperson.4 Again,
the 2014 Tanzanian Assembly elected Samwel Sitta to be its Chairperson. The
Deputy Chairperson post went to Hon. Samia Saluhu, currently the Vice President
of the United Republic of Tanzania. It would appear that this requirement should
apply in recruiting members of an assembly’s secretariat.
The principle of assembly’s autonomy in choosing its leadership was violated in

Uganda. According to the law the Chairperson and Deputy Chairman of the 1994-
5 Constituent Assembly could only be elected from the list of names provided by
the President.5 In compiling the list the President was obliged to consult the
Cabinet.6 Evidently, the executive branch of government intended to control the
assembly. It is to be noted that this assembly had some revolutionary backgrounds.
The legislation in question, the Constituent Assembly Statute, 1993, was not enacted

4 Heinz Klug, “South Africa’s Experience in Constitution-Building”, in Caroline Morris, et al. (eds.),
(2011), Reconstituting the Constitution, Springer, London, pp.51-82, at p.60.

5 Section 9(2) of the Constituent Assembly Statute, 1993.
6 Ibid.
87
through a popular process or by the popularly elected Parliament but by the

National Resistance Council of the National Resistance Movement (NRM) which
had taken power through the barrel of a gun. It is desirable for a constituent
assembly to function autonomously without interference and control by other
organs.
 Disciplinary Power over its Members

Another power inherent in an assembly is maintenance of discipline in its
proceedings.1 This power is important in that order is important in the course of
debate. Clearly, without this power it would be difficult to maintain order and
discipline within an assembly and probably render it difficult for it to accomplish
its responsibility. The Standing Orders of the 2014 Tanzanian Constituent
Assembly included disciplinary powers.2 As said, the chief purpose of the Orders
was to enable the Chairperson to control debate and maintain order in the
Assembly. The powers that were bestowed on the Chairperson ranged from
issuing a reprimand, demand of withdrawal of certain statements considered
offensive or improper to dismissal from the debate hall.3 Any member aggrieved
by any such order could to appeal to the Orders and Rights Committee.4 The
Committee acted like an appellate court clothed with power to hear the complaints
of members and deal with interpretation of the Orders.5
 Debate
The power to deliberate is perhaps the most important power and function of an
assembly. Many constituent assemblies in America and Europe have debated on
constitutional issues generally and drafts prepared by them or other organs. Of
course, the practice of debating on drafts prepared by other organs is not much
entrenched in Europe. In the majority of cases, assemblies debated on drafts that
they prepared. The 1948-9 German Parliamentary Council is one of the rare
occasions where an assembly debated a draft that was prepared by another body
(i.e. the Committee of Experts).6 It is also worthwhile to remark that, in Europe,
1 Jameson, op cit., p. 412.

2 See orders 67 -74 of the Constituent Assembly Standing Orders, 2014.
3 Order 68 of the Constituent Assembly Standing Orders, 2014.
4 Order 68(4), ibid.
5 See order 59, ibid.
6 Agness Strauβ, “Testing the “Veil of Ignorance” Hypothesis in Constitutional Choice: Evidence from
the German Grundgesetz,” in Louis M. Imbeu and Steve Jacob (eds.), (2015), Behind a Veil of Ignorance?
Power and Uncertainty in Constitutional Design, Springer, New York and London, pp.135-154, at p.142.
88
assemblies have provided forums where different political ideologies have

clashed. For instance, the 1946 French Constituent Assembly pitied the Catholics,
Monarchists, Communists, and Republicans.1 Likewise, the 1948-9 German
Parliamentary Council became an arena for the competing ideologies of Social
Democrats, and Christian Democrats, bourgeois parties, and Communists.2
What principles should govern debates in an assembly? Firstly, the debate must
be organised and conducted in a way that encourages consensus-building among
the delegates. Definitely, without consensus of the major political forces and other
interests the process cannot succeed. In complying with this principle, a number
of steps must be taken. One, it is necessary to organise an assembly in a number of
thematic committees.3 As already observed, more fruitful discussions can be held
by committees composed of a few members than in large and chaotic assemblies.
It may be asked, how many committees should be established? Of course, there is
no fixed number. But Bebout advises thus, “Observers of constitutional
conventions generally agree that the number of committees should be kept small,
with each substantive committee charged with responsibility for a broad segment
of the constitution and with no member serving on more than one such
committee.”4 Committees with reduced membership also provide an environment
that is conducive to consensus-building. The advantages of committees have
already been highlighted. Two, a deadlock-breaking mechanism has to be put in
place. That is a “Plan B” for an assembly. It is premised on the experience that
consensus is vital and it does not always come with any ease.
Secondly, a constitution has to be the guardian of the citizenry against private

interests. To achieve this, the constitution-making process has to wade off any
infiltrations of personal interests of certain individuals or groups. It is always
difficult but the more the neutral constitution-makers are alert on this danger the
better. Thus, the debate must focus entirely on public interests than individual
1 See generally, O. J., “The New French Constituent Assembly,” The World Today, Vol. 2, No. 7 (Jul.,
1946), pp. 300-305.
2 Inga Markovits, “Constitution-making After National Catastrophes: Germany in 1949 and 1990”, in

3 See, for instance, Hassen Ebrahim, (1999), The Soul of a Nation: Constitution-making in South Africa,
OUP, London, at p. 190.

4John E. Bebout, “Organizing the Constitutional Convention” in Proceedings of the Academy of Political
Science, Vol. 28, No. 3, Modernizing State Government: The New York Constitutional Convention of
1967 (Jan., 1967), pp. 22-34, p.30.
89
benefits of the delegates. Thirdly, freedom of speech ought to prevail.

Constitution-making being a deliberative form of democracy means each delegate
should be afforded an opportunity to speak freely. This means that all
impediments to freedom of speech have to be removed. In order to realise this
principle delegates must be protected from prosecution or any form of harassment.
The experience gained from the 2014 Tanzanian Constituent Assembly indicated
that the danger of harassment is more real than imagined. One member of the
Assembly was dismissed from the post of the Zanzibar Attorney General for
expressing an opinion that displeased the ruling party.1 While the dismissal can
hardly be justified, it ought to be understood that freedom of speech is not
unlimited. The right to speak must be exercised carefully and prudently in order
to advance consensus. More importantly, the desire to keep the nation united and
preserve peace and tranquillity cannot be jettisoned simply because the country is
making a constitution. This wisdom escaped the attention of the 2014 Tanzanian
Constituent Assembly which might have broken all records of ignobility. Instead
of focusing on constitutional issues, some of its members chose to indulge in a base
activity as they abused and attacked others and certain social groups on the racial
basis. This threatened to damage the national unity. Thus, freedom of expression
should not be extended to permit such debate.
Fourthly, equality and political neutrality is an important tenet that ought to

prevail. It requires, as Rawl contends, “that the fundamental liberties of the person
and liberty of conscience and freedom of thought be protected and that the political
process as a whole be a just procedure.”2 Equal treatment of all delegates
irrespective of their political or social affiliations would promote consensus. It
would be destructive to consensus if an assembly is to be run impartially by, for
instance, denying representatives of certain interests an opportunity to speak. It is
the responsibility of an assembly’s leadership to appear neutral and run the debate
impartially. It must lead the assembly to rise above the normal divisive politics
and work for the nation in a united front. Emphasising this particular point, Carroll
and English state:
1 Frank Kimboy and Mwinyi Sadallah, “Zanzibar AG sacking condemned,” The Citizen (Tanzania),
October 9, 2014.
2
John Rawls, (1999), A Theory of Justice, Rev. Edn., Harvard University Press, Massachusetts, at p.174.
90
The idea that constitutional conventions should be above politics derives

from the jurisprudential notion that constitutions are higher-law
documents embodying principles upon which society approaches
consensus. As such constitutions are designed to provide a framework
or organizing the government. This higher law designation expects
delegates to state constitutional Conventions to make objective, rational
decisions free from the normal pull and sway of partisan politics.1
Acting above parochial politics is extremely important. As noted before, a

constitution is a charter for the whole nation. It has to enjoy legitimacy of the
majority of, if not all, citizens.
Fifthly, the proceedings of an assembly must be conducted transparently. It is a

principle of democracy that the people have the right to be informed of all
important public issues generally and the assembly’s debates particularly. Radio
and TV live coverage, Newspaper and social media reporting would keep the
population aware of what goes on in an assembly. Publication of the proceedings
of an assembly is also hugely important. Transparency with regard to debates has
at least two benefits. One, it gives citizens an opportunity to understand all issues
discussed and the provisions of the resultant constitution. It simplifies their
decision-making in connection to any referendum held subsequent to the assembly
debates. Two, transparency provides a natural check against self-interest.2 It is
believed that when the delegates debate publicly they would refrain from
advancing self-interests.3 Impropriety in the public eyes is perhaps the most fearful
aspect to a politician.
However, while transparency is a democratic requirement, it has mischiefs of its

own. One, as Lester points out, vanity could be serious a problem. 4 In order to
protect their self-esteem in eyes of the public, delegates would refuse to change
their positions in the course of debate. Once a delegate takes a certain stand on any
1 John J. Carroll and Arthur English, “Constitution-Making Roles & Delegate Behaviour” in Polity, Vol.
17, No. 3 (Spring, 1985), pp. 586-594, at. p.586.

October 2016.

October 2016.
Vol. 45 No 364, pp.364-396 at p.384.
91
issue, he or she would stick to it even if other better reasons have been advanced.
This makes consensus very difficult and it can lead to the failure of the process. It
is for this reason that the proceedings of the 1787 American Constitutional
Convention were totally confidential.1 James Madison was quoted to have
remarked, “Had the members committed themselves publicly at first, they would
have afterwards supposed consistency required them to maintain their ground,
whereas by secret discussion no man felt himself obliged to retain his opinions any
longer than he was satisfied of their propriety and truth, and was open to the force
of argument.”2 As Barbash also observed, the delegates who had been given
instructions by their legislatures could deviate away from such instructions and
reach consensus as the debate was confidential.3
However, this modality did not enjoy universal acceptance. Thomas Jafferson,
who was in Paris at the time, remarked: “I am sorry they began their deliberations
by so abominable a precedent as that of tying of the tongues of their members.
Nothing can justify this example but the innocence of their intentions and
ignorance of the value of public discussions.”4 Likewise, Tushnet disfavours this
modality: “The U.S. Constitution was drafted by an unrepresentative, small group
meeting behind closed doors. Such a process would, generally speaking, be
unacceptable today.”5 Thus, Van Wyk opines that political parties must persuade
their supporters on the importance of confidential deliberation at a certain stage. 6
Two, the publicity of proceedings would instil fear into some delegates and thus
prevent them from expressing their opinions on certain sensitive issues. Speaking
about the delegates to the 1787 American Constitutional Convention, Barbash
noted thus, “They wanted to be free to speak their minds - and to change their
1 Cited in Jon Elster, “Forces and Mechanisms in the Constitution-Making Process,” in Duke Law Journal,
1995 Vol. 45 No 364, pp.364-396 at p.394.
Vol. 45 No 364, pp.364-396 at p.384.

3
Cited in Dawid van Wyk, “The making of the Namibian Constitution: lessons for Africa,” The
Comparative and International Law Journal of Southern Africa, Vol. 24, No. 3 (Nov., 1991), pp. 341-351, at
p.351.
4 Joe Wolverton, “Secrecy and States' Rights: The Constitutional Convention of 1787 Begins” on
http://www.thenewamerican.com/culture/history/item/15546-secrecy-and-states-rights-the-
constitutional-convention-of-1787-begins, accessed on 12th November 2016.
5
Mark Tushnet, “Some Skepticism about Normative Constitutional Advice”, in William and Mary Law
Review, Vol. 49, No. 4, 2009, pp.1473-1495, p.1994.
6 Dawid van Wyk, “The making of the Namibian Constitution: lessons for Africa,” The Comparative and
International Law Journal of Southern Africa, Vol. 24, No. 3 (Nov., 1991), pp. 341-351, at p.351.
92
minds - without fear of political retribution.”1 Some divisive political and religious
issues, for instance, are a case in point. The 2014 Constituent Assembly is an
example of this situation. All ministers formed part of the Assembly but they rarely
spoke. Understandably, in principle, ministers and other government officials are
required to observe a certain degree of neutrality while speaking in public. It was
thus a mistake to include them in the Assembly. Three, publicity may overly
protract the proceedings. Many delegates, especially those with political
ambitions, might want to speak just for the sake of speaking or merely register
their presence. They could just repeat what others said. Public funds would be
unnecessarily wasted for maintaining a useless long debate. For this reason, it is
recommendable that debates should be conducted in two or more different stages.
At one stage the proceedings should be confidential. The discussion at the
Committee stage in the 2014 Tanzanian Constituent Assembly was confidential.
This was objected by journalists and certain sections of the public. But, it is opined,
it was necessary for the purpose of reaching consensus and creating a free
environment for members to speak without fear. For similar reasons, secret voting
is the most appropriate mechanism of decision-making when consensus fails.
Thus, for pragmatic reasons, the principle of transparency has to give way albeit
at certain stages of debates.
It is to be noted, however, while discussion behind closed doors is important at

some stage for the reasons explained, it presents one serious danger. It affords the
delegates an opportunity to infiltrate their personal interests. For instance, some
delegates to the 17987 American Constitutional Convention refused the inclusion
of the Bill of Rights because they were slave owners.2 Thus, the rest of the
population was denied the benefit of the constitutional protection of their
individual rights simply because three or five delegates decided to selfishly serve
their personal economic interests and betray the people. To avert this danger, the
views put forward, adopted amendments, and any other similar thing done
behind the closed doors must, as of necessity, be debated in the open session of the
Assembly.
1 Cited in Dawid van Wyk, “The making of the Namibian Constitution: lessons for Africa,” The
Comparative and International Law Journal of Southern Africa, Vol. 24, No. 3 (Nov., 1991), pp. 341-351, at
p.351.
2
Charles A. Beard, (1968), An Economic Interpretation of the Constitution of the United States, Macmillan,
New York (Original publication 1913). Cited in Levent Gönenç, (2002), The Prospects for Constitutionalism
in Post-Communist Countries, Kluwer Law International, The Hague, p.115.
93
 Drafting
Drafting is another common undertaking of constituent assemblies. General
debate, whether on total revision or amendment of a constitution, is ordinarily
followed by drafting. Furthermore, in case a draft has been prepared by another
organ an assembly would draft the particular provisions that it amends. By its
nature, drafting is a technical task mainly carried out by experts especially lawyers.
Sarkin’s statement attests to this world-wide practice:
Constitutional borrowing occurs because the drafters of new

constitutions often seek the assistance of lawyers from states with
constitutions and a history of constitutional adjudication, since domestic
experience in such endeavors is usually limited. These lawyers bring
with them their own experiences of constitutional systems, which are
then incorporated, to some degree, in the constitution that they are
helping to draft.1
As earlier noted, both the Rules Committee and the Committee of Details, entirely
composed of lawyers, undertook the drafting task in the 1787 American
Convention.2 Again, the Namibian Constituent Assembly (1989-90) hired two
academic lawyers to fulfil drafting responsibilities.3 Similarly, the 2014 Tanzanian
Constituent Assembly established a Drafting Committee that was mainly
composed of lawyers. However, the established practice of assigning the drafting
duty to all-lawyers-committees has come under attack recently. As noted before,
Murray criticised the fact that the team of advisors to the South African
Constitutional Assembly (1994-6) was entirely composed of lawyers.4 Probably a
more radical view is that given by Elster, a political scientist, who thinks that
lawyers are problematic: “The role of experts should be kept to a minimum
because solutions tend to be more stable if dictated by political rather than
technical considerations. Lawyers will tend to resist the technically flawed and
deliberately ambiguous formulations that may be necessary to achieve
consensus.”5 However, this radical view is not beyond reproach. While the idea of
1 Jeremy Sarkir, “The Effect of Constitutional Borrowings on the Drafting of South Africa's Bill of Rights
and Interpretation of Human Rights Provisions,” in Journal of Constitutional Law, Vol.1, No. 2, Fall 1998,
pp.176-204, at p.177.
3 See, Dawid van Wyk, “The making of the Namibian Constitution: lessons for Africa,” The Comparative
and International Law Journal of Southern Africa, Vol. 24, No. 3 (Nov., 1991), pp. 341-351, at p.347.
4 Christina Murray, “Negotiating South Africa’s New Constitution,” in Clement Macintyre and John
Williams (eds.), Peace, Order and Good Government: State Constitutional and Parliamentary Reform,
Wakefield Press, Kent Town, pp.68-83, at pp.76-77.
5 Elster (1995), op. cit., p.395.
94
constituting drafting committees that blend different experiences and skills is

supportable, total exclusion of lawyers is not. Drafting is a technical aspect for
which lawyers are needed. Moreover, as argued earlier in this lecture, constitution-
making is not a preserve of politicians. Neither is it an exclusive assignment for
lawyers. It is supposed to be a joint effort of various professionals.
Another aspect that calls for at least cursory examination is language. The South
African Constituent Assembly (1994-6) adopted a laudable policy of employing
plain language in drafting a constitution.1 Additionally, the language used was
gender-neutral.2 This neutrality develops a sense of ownership of a constitution
into all the people. It was also observed that ““simplicity, precision, and clarity””3
were important considerations in the course of drafting the 1996 South African
Constitution.4 This policy was very important in that a constitution is a
fundamental law for all citizens. It should not be a complex document that can be
read and understood by experts or the highly educated citizens alone. It must be a
user-friendly document that attracts every ordinary citizen to read it. This, in turn,
brings forth at least three advantages. One, it simplifies decision-making before a
referendum. Citizens would normally be aware of its provisions and thus decide
whether to support or reject it. Two, its wide understanding would mean that
people would protect it in case of its attempted breach by power wielders. Three,
popular knowledge of constitutional provisions develops a positive culture of
constitutionalism in a country. The constitutional text which is well-known
promotes constitutional culture among individuals, public authorities, political
actors and the masses generally. Many public affairs are expected to be conducted
in conformity with a constitution. It sets new standards for a nation. Conversely,
if a constitution is written in the complex and technical language, it becomes the
official document known only to judges, advocates, political elites, and public
officials. In other words, its complexity divorces it from ordinary citizens.
 Public Opinion and Education

On rare occasions constituent assemblies have exercised the power to collect public
opinions and conduct public awareness programmes. In Africa and Asia, this
1 See, Heinz Klug, “South Africa’s Experience in Constitution-Building,” in Caroline Morris, et al. (eds.),
(2011), Reconstituting the Constitution, Springer, London, pp.51-82, at p.60.
3 Ibid., p.215.
4 Ibid.
95
power has often times exercised by constitutional commissions, committees of

experts, or similar bodies. But the South African Constitutional Assembly (1994-6)
had the power to perform this task. The principles and dynamics of collecting
public opinion and raising public awareness about constitution-making processes
and contents of constitutional drafts have been discussed in other lectures.
Nonetheless, one point needs to be highlighted in this connection. The typical
traditional American and European constitution-making has been to consign all
responsibilities to the delegates sitting in the debate halls. In countries where they
have been held, referendums have probably provided the only participatory space
to ordinary people. In contrast, Africa has moved out the debate halls and gone to
the village to consult a villager about the affairs his or her country. This, in the
opinion of Cottrell & Ghai1, is a paradox in which the undisputed democratic
underdog in the democratic league is leading the democratic giants, so to speak.
Otherwise, it is opined, constituent assemblies have too numerous members who
might harbour too serious disagreements to perform these functions efficiently. It
is a function that can be exercised conveniently and efficiently by a constitutional
commission or similar body.
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Constituent Assemblies ― Idd R.

UNIVERSITY OF DAR ES SALAAM

© I.R. Mandi, April 2017

of which he had to obtain from Cape town University in South Africa. I

Generally speaking, the process was marred by anxiety, indecision, ignorance

Equally baffling is lack of written records about constituent assemblies

Overview and Nomenclature

17, No. 3 (Spring, 1985), pp. 586-594, p.594.

http://download2.cerimes.fr/canalu/documents/cerimes/UPL55488_Elster.pdf, accessed on 13th

and Comparative Law, 2014, pp. 1260-1286, at p.1260.

Cambridge Journal of International and Comparative Law, 2014, pp.1207-1220, at p.1207.

Vol. 22, No. 3 (1961), pp. 179-194, p.180.

Sovereignty in Kenya,” in Constellations, Vol.19, No. 2, 2012, pp.246-266 at p. 252.

Black-American Justice of the American Supreme Court in 1967.

Why such meetings had to be held in London? Kanyeihamba attempts to answer

Interestingly, as Kanyeihamba states, being a footballing nation, the British

London.1 Instead, the constitutional conference for Tanganyika was held at

Another phrase, “constitutional convention,” also deserves some explanation. It is

The phrase “constitutional convention” is not understood in the same sense on

21, No. 1 (Nov., 1987), pp. 11-19, at p.11.

Another phrase, which has gained substantial prominence, is “consultative

International IDEA, Stockholm, p.14.

Colombia (1990-1); Paraguay (1992); Venezuela (1999-2000), Bolivia (2006-9); and

Law Review (2009), at pp.450-451, at p.450.

Law Review, Vol.49; Issue 4, pp.1513- 1541, at p. 1515-1516.

Magna Carta that you will see today was written . . .

1 Danziger and Gillingham, op. cit., p.268.

Law Review (2009), at pp.450-451, at p.450.

power to change the framework of government. If it was anything resembling a

The institution of constituent assembly as understood today developed in

of The Historical Society II: 2 Spring 2002, pp.229-260.

7 Braxton (1901), p. 87.

in Hoar, op. cit., pp.6-7.

convention to be summoned.1 But the people rejected a constitution drafted by this

That the Supreme Legislative, either in their proper capacity, or in Joint

5 Jameson, (1869), op. cit., p. 1.

6 Communication No. 205/l986, U.N. Doc. CCPR/C/43/D/205/l986 at 40 (1991).

Vol.4, Fortieth to forty-sixth sessions (October 1990 - October 1992), p.42.

the subject against any encroachment of the governing part on any, or on

Secondly, Parliament cannot undertake any action in relation to a constitution

As regards Europe, the French National Constituent Assembly (1789-91) followed

1 Cited in Hoar, op. cit., p.7.

5 Jameson, (1869), op. cit., p. 1.

Nature and Classification of Constituent Assemblies

Review, Vol. 25, No. 2 (Jun., 1966), pp. 314-319, at p. 314.

6 Braxton, (1901), op. cit. p. 87.

Again, the characterisation of a constituent assembly as an autonomous body calls

It is also worth noting that a modern constituent assembly is regarded as a forum

demonstrated that as long as governments resist peaceful change, revolutions are

Constituent assemblies are also characterised as “irregular institutions.”1 In this

1 Michel Rosenfeld, “Constitution-Making, Identity Building, and Peaceful Transition to Democracy:

4 Ibid., op. cit., p.91.

5 Michel Rosenfeld, “Constitution-Making, Identity Building, and Peaceful Transition to Democracy:

7 Cited in Hoar, op. cit. p.90.

In the second place, constituent assemblies are regarded as irregular, specialised,

1 (1873), 6 W. Va. 613, 708; cited in Hoar, p.69.

3 (1912), 178 Ind. 336, at p. 344.

grounded on the belief that a successful process of constitution-making must be

Third, ordinarily, the most predominant agenda in a constitution-making process

1 Partlett, “The Dangers of Constitution-Making”, op. cit., p.195.

45 No 364, pp.364-396 at p.376-382.

institutions are dissolved immediately after accomplishing their mandate. The

After the enactment of the proposed Constitution, consequential and

1 Section 28(1) of the Constitutional Review Act, 2011.