DEMOCRATIC CONSTITUTIONAL MAKING

Processes, Principles and Mechanisms

Introduction
There is no single correct approach to constitution-
making. Furthermore, unlike elections or other tasks
involved in creating a democracy, constitution-making
does not follow neatly prescribed stages.
A wide range of tasks can be carried out as part of a
constitution making process, and in designing and
developing a process; many choices are made that result
in major differences between processes.
There are many choices that can be made about the
institutions or procedures used to carry out any particular
task. For example, it is usually necessary for constitution-
makers to do most of the following:
• think through and research the issues facing the country;
• consider the choices of constitutional arrangements that
will best respond to the issues;
• educate and consult the people about the issues and the
choices;
 negotiate among major political groups and those with
powers of decision-making about the constitutional
making choices;
• administer and manage the constitution-making process;
• draft, debate, and adopt a new constitutional document;
and
• make arrangements for implementation of the new
constitution.
GUIDING PRINCIPLES IN CONSTITUTIONAL MAKING PROCESS

Public participation
 The forms of public participation go beyond voting for

constitutional representatives or in a referendum.

Instead, they include civic education and media
campaigns, public consultation (both on how the
process should be undertaken and on the substance of
the constitution), national dialogue, and other
creative means.
What public participation in constitution making actually
entails? “Participation” refers to broader public
engagement in these processes.
What are different types of public participation ?.
How participation can take different forms with different
amounts of influence for participants?
Does public participation form part of the right to take
part in public affairs?
Who can participate, when, how, to what extent?
Public participation
Public participation
Inclusiveness and Representation

 “Inclusion” refers to key political and social groups

participating directly both in decision-making concerning
the design of the constitution-making process and in
drafting the constitution
 The process must include all groups in the society. An
inclusive process will attempt to draw in all key
stakeholders to the constitutional negotiations (including
gender equity).
 Special efforts should be made to reach out marginalized
segments of society, such as the disabled, women, youth,
indigenous populations, and the poor.
Transparency
 Access to information is the legal right for citizens to
request and receive information from public authorities. It
is based on the right to freedom of information.
 Access to information supports accountability along with
informed public participation in decisions, and is therefore
fundamental for the effective functioning of democracies.
 The principle of transparency has a direct impact on the
accountability of administration toward the citizens, while
citizens are able to get all the information regarding the
work of public administration and also are allowed to get
involved in the process of decision-making.
A transparent process enables the public, the media and
civil society to participate by keeping them informed
about how the process will be conducted, the modes of
appointment and election of their representatives, the
adoption process, their role in the process, and providing
feedback about the results of public consultations.
Transparency also involves providing for media access at
appropriate times.
National ownership

 Constitution making is a sovereign process that, to be

successful, should be nationally owned and led.
National ownership requires the engagement of
national authorities, a broad range of political actors,
ethnic, religious and minority groups, civil society,
including women’s groups, and the general public.
 The options and advice provided must be carefully

tailored to the local context, recognizing there is no

“one size fits all” constitutional model or process
Solutions to conflict and division must come from within
a country if a durable peace is to have a chance.
There is a need, in contexts where educated or
experienced professionals or political actors have fled the
country, to provide the space, time, and resources to
develop the capacity of inexperienced national actors to
manage and implement the process effectively.
Advantages/ Impacts of adherence to
guiding principles
Designing a constitution-making process on the basis of such principles is
regarded by some as likely to have a range of beneficial effects, including:
• providing a framework within which divided groups can work toward
consensus on addressing causes of conflict and a governance framework
promoting a durable peace;

• influencing the contents of the constitution by reflecting the concerns and

rights of minorities;

• informing constitution-makers about the aspirations of the people;

• creating political space for the emergence of new actors and strengthening
civil society actors;
• building trust between communities and leaders through dialogue;
• Educating the public about constitutionalism;
• Improving public ownership of the resulting
constitution;
• Laying foundations for democratic and participatory
government and a culture that respects the rule of law;
• Enhancing public willingness to defend the constitution
and achieve its implementation; and
• Contributing to future conflict prevention and
transformation by encouraging conflict resolution through
constitutional means.
Objectives of Constitution Building other than the production of a new document

 Reconciliation among conflicting groups;

strengthening national unity Empowering the people;
and preparing them for participation in public affairs
and the exercise and protection of their rights;
elaborating national goals and values; broadening the
agenda for cha Promoting knowledge and respect for
principles of constitutionalism; Enhancing the
legitimacy of the settlement and the constitution.
MODES/ WAYS/ MECHANISMS OF MAKING CONSTITUTIONS

 National Conference/ Convention

A national conference (or national debate, as it is referred to in some countries)
is a public forum, held over an extended period, at which representatives from
key political and civic groups are invited to discuss and develop a plan for the
country’s political future, preferably on a consensus basis.
By convening a national conference, the government allows other political
groups to participate in a decision-making process, while still maintaining its
own authority and control. In agreeing to hold and participate in a national
conference the central government is not guaranteeing political freedom or the
sharing of power with other political factions; rather it is agreeing to conduct a
nationwide political dialogue and ideally, to jointly plan steps toward increased
political representation and liberalization.
 National conferences are designed typically to fulfill two goals: first, to
address the demands for political liberalization, by being inclusive and
highly visible, especially to the international community; and second, to
achieve gradual, “managed” transition, often with the incumbent
leadership believing that it can maintain control over the process.

 In many African countries, for example, national conferences opened up

previously one-party systems by bringing together different actors to
address the country’s political problems, formulated new constitutional
rules, and established electoral timetables. Some national conferences
even achieved peaceful alternations in power. In this way they can be
seen as an indigenously generated African contribution to political
institution building and regime transition.
 Having collected views and interests of the people the
body establishes the basic framework of the
constitution and print it out. The printed out document
is sent to the body of experts who draft a new
constitution and sent it to the public debate. If there is
any addition, they will be incorporated and sent it for
the process of adoption of the same.
 National conferences in Africa were usually “one-off”
assemblies representing a wide range of individuals and
corporate interests. They lasted from a few days to several
months; contained several hundred to several thousand delegates
(i.e., 500 in Benin, 1,200 in Congo, 4,000 in Zaire);
 Occurring in 12 African countries between 1990 and 1993,
national conferences were largely a Francophone phenomenon
(Benin, Chad, Comoros, Congo, Gabon, Mali, Niger, Togo and
Zaire) although similar bodies were also convened in Ethiopia in
July 1991, in South Africa in December 1991, and in Guinea-
Bissau in 1992. Some attempts were also made in Burkina Faso,
Cameroon, Central African Republic, and Guinea.
CONSTITUENT ASSEMBLY

This is a special body usually created through appointment or election for the purpose of
adopting/making a Constitution. Or we can say this is the primary role of the constituent
Assembly.

Once it completes that task it dissolved. Constituent assemblies differ in the composition,
functions and modes of operation. In some countries it has been in charge of the entire
process, but in others it has shared the task with other institutions, including giving the force
of law to the constitution.

Therefore when the decision to have a constituent assembly is made, it is important to focus on its

relationship to other aspects of the constitution making process, even the fundamental question of

how to initiate the reform process and to develop a consensus on institutions and methods
 Constitutionally, the constituent Assembly is considered a higher body than
the Parliament simply because the parliament itself has been created by the
constitution which in turn was made by the Constituent Assembly. Constituent
Assembly is considered a peoples’ instrument to make the constitution.

 By now you may be asking yourself “that the constitution usually gives power
to the Parliament to amend the Constitution”? Yes it is very true; however, the
Parliament cannot repeal the whole constitution and make a new one. There is
a clear distinction on the roles of the parliament as follows; when the
parliament makes ordinary law it act in Legislative capacity, while when
amending the constitution it act in Constituent Capacity.

 The main reason for having a special body to make Constitution is to give the
constitution Political Legitimacy which is acceptability by the people.
Write the meaning, composition and functions of the
following bodies in making the constitution
 Commission
 White paper
 Committee of Experts
 Referendum